exv4w6






Exhibit 4.6




 





FOREST CITY ENTERPRISES, INC.




as Issuer




and




THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.




as Trustee




INDENTURE




Dated as of October 7, 2009




3.625% Puttable Equity-Linked Senior Notes due 2014




 






 









 








FOREST CITY ENTERPRISES, INC.

Reconciliation and tie between Trust Indenture Act of 1939 and

Indenture, dated as of October 7, 2009




	 	 	 
	Trust Indenture Act Section	 	Indenture Section
	§310(a)(1)
	 	6.09
	(a)(2)
	 	6.09
	(a)(3)
	 	Not Applicable
	(a)(4)
	 	Not Applicable
	(a)(5)
	 	6.09
	(b)
	 	6.08; 6.10; 6.11
	(c)
	 	Not Applicable
	§311(a)
	 	6.13
	(b)
	 	6.13
	(c)
	 	Not Applicable
	§312(a)
	 	4.01; 4.02(a)
	(b)
	 	4.02(b)
	(c)
	 	4.02(c)
	§313(a)
	 	4.03(a)
	(b)
	 	4.03(a)
	(c)
	 	4.03(a)
	(d)
	 	4.03(b)
	§314(a)
	 	4.04(a)
	(b)
	 	Not Applicable
	(c)(1)
	 	3.08
	(c)(2)
	 	15.05
	(c)(3)
	 	Not Applicable
	(d)
	 	Not Applicable
	(e)
	 	3.08
	§315(a)
	 	6.01
	(b)
	 	5.08
	(c)
	 	6.01
	(d)
	 	6.01
	(e)
	 	5.09
	§316(a)
	 	1.02
	(a)(1)(A)
	 	7.01; 5.01; 5.07
	(a)(1)(B)
	 	5.07
	(a)(2)
	 	Not Applicable
	(b)
	 	5.04
	(c)
	 	7.01
	§317(a)(1)
	 	5.02; 5.05
	(a)(2)
	 	5.02
	(b)
	 	6.05; 11.01
	§318(a)
	 	1.02
	(c)
	 	1.02





Note: This reconciliation and tie shall not, for any purpose, be deemed to be part of the Indenture.





 









 








TABLE OF CONTENTS




 






	 	 	 	 	 
	 	 	Page	 
	Article 1 Definitions
	 	 	1	 
	 
	 	 	 	 
	Section 1.01. Definitions
	 	 	1	 
	Section 1.02. Incorporation by Reference of Trust Indenture Act
	 	 	14	 
	 
	 	 	 	 
	Article 2 Issue, Description, Execution, Registration and Exchange of Notes
	 	 	14	 
	 
	 	 	 	 
	Section 2.01. Designation and Amount
	 	 	14	 
	Section 2.02. Form of Notes
	 	 	14	 
	Section 2.03. Date and Denomination of Notes; Payments of Interest
	 	 	15	 
	Section 2.04. Reserved
	 	 	16	 
	Section 2.05. Execution, Authentication and Delivery of Notes
	 	 	17	 
	Section 2.06. Exchange and Registration of Transfer of Notes; Restrictions on Transfer;
Depositary
	 	 	18	 
	Section 2.07. Mutilated, Destroyed, Lost or Stolen Notes
	 	 	24	 
	Section 2.08. Temporary Notes
	 	 	25	 
	Section 2.09 Cancellation of Notes Paid, Etc
	 	 	25	 
	Section 2.10. CUSIP Numbers
	 	 	25	 
	Section 2.11. Additional Notes, Repurchases
	 	 	25	 
	 
	 	 	 	 
	Article 3 Particular Covenants of the Company
	 	 	26	 
	 
	 	 	 	 
	Section 3.01. Payment of Principal and Interest
	 	 	26	 
	Section 3.02. Maintenance of Office or Agency
	 	 	26	 
	Section 3.03. Appointments to Fill Vacancies in Trustee’s Office
	 	 	27	 
	Section 3.04. Provisions as to Paying Agent
	 	 	27	 
	Section 3.05. Existence
	 	 	28	 
	Section 3.06. Rule 144A Information Requirement and Annual Reports
	 	 	28	 
	Section 3.07. Stay, Extension and Usury Laws
	 	 	28	 
	Section 3.08. Compliance Certificate; Statements as to Defaults
	 	 	29	 
	Section 3.09. Further Instruments and Acts
	 	 	29	 
	 
	 	 	 	 
	Article 4 Lists of Noteholders and Reports by the Company and the Trustee
	 	 	29	 
	 
	 	 	 	 
	Section 4.01. Lists of Noteholders
	 	 	29	 
	Section 4.02. Preservation and Disclosure of Lists
	 	 	29	 
	Section 4.03. Reports by Trustee
	 	 	30	 
	Section 4.04. Reports by Company
	 	 	30	 






i









 






	 	 	 	 	 
	 	 	Page	 
	Article 5 Defaults and Remedies
	 	 	31	 
	 
	 	 	 	 
	Section 5.01. Events of Default
	 	 	31	 
	Section 5.02. Payments of Notes on Default; Suit Therefor
	 	 	34	 
	Section 5.03. Application of Monies Collected by Trustee
	 	 	35	 
	Section 5.04. Proceedings by Noteholders
	 	 	36	 
	Section 5.05. Proceedings by Trustee
	 	 	37	 
	Section 5.06. Remedies Cumulative and Continuing
	 	 	37	 
	Section 5.07. Direction of Proceedings and Waiver of Defaults by Majority of Noteholders
	 	 	37	 
	Section 5.08. Notice of Defaults
	 	 	38	 
	Section 5.09. Undertaking to Pay Costs
	 	 	38	 
	 
	 	 	 	 
	Article 6 Concerning the Trustee
	 	 	40	 
	 
	 	 	 	 
	Section 6.01. Duties and Responsibilities of Trustee
	 	 	40	 
	Section 6.02. Reliance on Documents, Opinions, Etc
	 	 	40	 
	Section 6.03. No Responsibility for Recitals, Etc
	 	 	42	 
	Section 6.04. Trustee, Paying Agents, Put Exercise Agents or Registrar May Own Notes
	 	 	42	 
	Section 6.05. Monies to be Held in Trust
	 	 	42	 
	Section 6.06. Compensation and Expenses of Trustee
	 	 	43	 
	Section 6.07. Officers’ Certificate as Evidence
	 	 	43	 
	Section 6.08. Conflicting Interests of Trustee
	 	 	44	 
	Section 6.09. Eligibility of Trustee
	 	 	44	 
	Section 6.10. Resignation or Removal of Trustee
	 	 	44	 
	Section 6.11. Acceptance by Successor Trustee
	 	 	45	 
	Section 6.12. Succession by Merger, Etc
	 	 	46	 
	Section 6.13. Limitation on Rights of Trustee as Creditor
	 	 	46	 
	Section 6.14. Trustee’s Application for Instructions from the Company
	 	 	46	 
	 
	 	 	 	 
	Article 7 Concerning the Noteholders
	 	 	47	 
	 
	 	 	 	 
	Section 7.01. Action By Noteholders
	 	 	47	 
	Section 7.02. Proof of Execution by Noteholders
	 	 	47	 
	Section 7.03. Who Are Deemed Absolute Owners
	 	 	48	 
	Section 7.04. Company-owned Notes Disregarded
	 	 	48	 
	Section 7.05. Revocation of Consents; Future Holders Bound
	 	 	48	 
	 
	 	 	 	 
	Article 8 Noteholders’ Meetings
	 	 	49	 
	 
	 	 	 	 
	Section 8.01. Purpose of Meetings
	 	 	49	 
	Section 8.02. Call of Meetings by Trustee
	 	 	49	 
	Section 8.03. Call of Meetings by Company or Noteholders
	 	 	50	 
	Section 8.04. Qualifications for Voting
	 	 	50	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	Section 8.05. Regulations
	 	 	50	 
	Section 8.06. Voting
	 	 	50	 
	Section 8.07. No Delay of Rights by Meeting
	 	 	51	 
	 
	 	 	 	 
	Article 9 Supplemental Indentures
	 	 	51	 
	 
	 	 	 	 
	Section 9.01. Supplemental Indentures Without Consent of Noteholders
	 	 	51	 
	Section 9.02. Supplemental Indentures With Consent of Noteholders
	 	 	51	 
	Section 9.03. Effect of Supplemental Indentures
	 	 	53	 
	Section 9.04. Notation on Notes
	 	 	53	 
	Section 9.05. Evidence of Compliance of Supplemental Indenture to be Furnished to the Trustee
	 	 	54	 
	 
	 	 	 	 
	Article 10 Consolidation, Merger, Sale, Conveyance and Lease
	 	 	54	 
	 
	 	 	 	 
	Section 10.01. Company May Consolidate, Etc. on Certain Terms
	 	 	54	 
	Section 10.02. Successor Corporation to be Substituted
	 	 	54	 
	Section 10.03. Officers’ Certificate and Opinion of Counsel to be Given Trustee
	 	 	55	 
	 
	 	 	 	 
	Article 11 Satisfaction and Discharge of Indenture
	 	 	55	 
	 
	 	 	 	 
	Section 11.01. Discharge of Indenture
	 	 	55	 
	Section 11.02. Deposited Monies to be Held in Trust by Trustee
	 	 	56	 
	Section 11.03. Paying Agent to Repay Monies Held
	 	 	56	 
	Section 11.04. Return of Unclaimed Monies
	 	 	56	 
	Section 11.05. Reinstatement
	 	 	56	 
	 
	 	 	 	 
	Article 12 Immunity of Incorporators, Shareholders, Officers and Directors
	 	 	57	 
	 
	 	 	 	 
	Section 12.01. Indenture and Notes Solely Corporate Obligations
	 	 	57	 
	 
	 	 	 	 
	Article 13 Exercise of Put rights; Redemptions
	 	 	57	 
	 
	 	 	 	 
	Section 13.01. Put Exercise Privilege
	 	 	57	 
	Section 13.02. Put Exercise Procedure
	 	 	60	 
	Section 13.03. Related Party Limitation
	 	 	63	 
	Section 13.04. Adjustment of Put Value Rate
	 	 	63	 
	Section 13.05. Reserved
	 	 	72	 
	Section 13.06. Effect of Reclassification, Consolidation, Merger or Sale
	 	 	72	 
	Section 13.07. Certain Covenants
	 	 	73	 
	Section 13.08. Responsibility of Trustee
	 	 	74	 
	Section 13.09. Notice to Holders Prior to Certain Actions
	 	 	74	 
	Section 13.10. Shareholder Rights Plans
	 	 	75	 
	Section 13.11. Termination of Put Rights by the Company
	 	 	75	 






iii









 






	 	 	 	 	 
	 	 	Page	 
	Section 13.12. Redemption of Notes
	 	 	78	 
	Section 13.13. Notice of Optional Redemption; Selection of Notes
	 	 	78	 
	Section 13.14. Payment for Notes Called for Redemption by the Company
	 	 	80	 
	Section 13.15. Put Arrangement on Call for Redemption
	 	 	80	 
	Section 13.16. Repayment to the Company
	 	 	81	 
	Section 13.17. Acceleration; Payments to Noteholders
	 	 	81	 
	Section 13.18. No Sinking Fund
	 	 	81	 
	 
	 	 	 	 
	Article 14 Repurchase of Notes at Option of Holders
	 	 	81	 
	 
	 	 	 	 
	Section 14.01. Repurchase at Option of Holders Upon a Designated Event
	 	 	81	 
	 
	 	 	 	 
	Article 15 Miscellaneous Provisions
	 	 	85	 
	 
	 	 	 	 
	Section 15.01. Provisions Binding on Company’s Successors
	 	 	85	 
	Section 15.02. Official Acts by Successor Corporation
	 	 	85	 
	Section 15.03. Addresses for Notices, Etc
	 	 	85	 
	Section 15.04. Governing Law
	 	 	86	 
	Section 15.05. Evidence of Compliance with Conditions Precedent; Certificates and Opinions of
Counsel to Trustee
	 	 	86	 
	Section 15.06. Legal Holidays
	 	 	86	 
	Section 15.07. No Security Interest Created
	 	 	86	 
	Section 15.08. Benefits of Indenture
	 	 	87	 
	Section 15.09. Table of Contents, Headings, Etc
	 	 	87	 
	Section 15.10. Authenticating Agent
	 	 	87	 
	Section 15.11. Execution in Counterparts
	 	 	88	 
	Section 15.12. Waiver Of Jury Trial
	 	 	88	 
	Section 15.13. Force Majeure
	 	 	88	 






iv









 





     INDENTURE dated as of October 7, 2009 between Forest City Enterprises, Inc., an Ohio
corporation, as issuer (hereinafter sometimes called the “Company”, as more fully set forth in
Section 1.01), and The Bank of New York Mellon Trust Company, N.A., a national banking association,
as trustee (hereinafter sometimes called the “Trustee”, as more fully set forth in Section 1.01).



WITNESSETH:




     WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issue of its
3.625% Puttable Equity-Linked Senior Notes due 2014 (hereinafter sometimes called the “Notes”),
initially in an aggregate principal amount not to exceed $200,000,000, and in order to provide the
terms and conditions upon which the Notes are to be authenticated, issued and delivered, the
Company has duly authorized the execution and delivery of this Indenture; and



     WHEREAS, the Notes, the certificate of authentication to be borne by the Notes, the Form of
Assignment and Transfer, the Form of Designated Event Purchase Notice, the Form of Put Exercise
Notice are to be substantially in the forms hereinafter provided for; and



     WHEREAS, all acts and things necessary to make the Notes, when executed by the Company and
authenticated and delivered by the Trustee or a duly authorized authenticating agent, as in this
Indenture provided, the valid, binding and legal obligations of the Company, and to constitute
these presents a valid and legally binding agreement according to its terms, have been done and
performed, and the execution of this Indenture and the issue hereunder of the Notes have in all
respects been duly authorized.



NOW, THEREFORE, THIS INDENTURE WITNESSETH:




     That in order to declare the terms and conditions upon which the Notes are, and are to be,
authenticated, issued and delivered, and in consideration of the premises and of the purchase and
acceptance of the Notes by the holders thereof, the Company covenants and agrees with the Trustee
for the equal and proportionate benefit of the respective holders from time to time of the Notes
(except as otherwise provided below), as follows:



ARTICLE 1

Definitions




     Section 1.01. Definitions.



     (a) The terms defined in this Section 1.01 (except as herein otherwise expressly provided or
unless the context otherwise requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this Section 1.01. All other
terms used in this Indenture, which are defined in the Trust Indenture Act or which are by
reference therein defined in the Securities Act (except as herein otherwise expressly provided or
unless the context otherwise requires) shall have the meanings assigned to such terms in said



 









 







Trust
Indenture Act and in said
Securities Act as in force at the date of the execution of this
Indenture. The words “herein,” “hereof,” “hereunder,” and words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other Subdivision. The
terms defined in this Article include the plural as well as the singular.



     “Additional Shares” shall have the meaning specified in Section 13.01(e).



     “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, “control,” when used with respect to any specified Person means the
power to direct or cause the direction of the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or otherwise; and the
terms “controlling” and “controlled” have meanings correlative to the foregoing.



     “Beneficial Owner” and “Beneficial Ownership” means as determined in accordance with Rule
13d-3 under the Exchange Act.



     “Board of Directors” means the Board of Directors of the Company or a committee of such Board
duly authorized to act for it hereunder.



     “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors, or duly authorized
committee thereof (to the extent permitted by applicable law), and to be in full force and effect
on the date of such certification, and delivered to the Trustee.



     “Business Day” means any day, except a Saturday, Sunday or legal holiday on which the banking
institutions in The City of New York or the city in which the Corporate Trust Office is located are
authorized or obligated by law or executive order to close.



     “Capital Lease” means a lease that, in accordance with accounting principles generally
accepted in the United States of America, would be recorded as a capital lease on the balance sheet
of the lessee.



     “Capital Lease Obligation” of any Person means the obligation to pay rent or other payment
amounts under a lease of (or other Debt arrangements conveying the right to use) real or personal
property of such Person which is required to be classified and accounted for as a capital lease or
a liability on the face of a balance sheet of such Person in accordance with generally accepted
accounting principles. The stated maturity of such obligation shall be the date of the last payment
of rent or any other amount due under such lease prior to the first date upon which such lease may
be terminated by the lessee without payment of a penalty. The principal amount of such obligation
shall be the capitalized amount thereof that would appear on the face of a balance sheet of such
Person prepared in accordance with generally accepted accounting principles.



2









 





     “capital stock” means, for any entity, any and all shares, interests, participations or other
equivalents of or interests in (however designated) stock issued by that entity.



     “Capital Stock” of any Person means any and all shares, interests, participations or other
equivalents (however designated) of corporate stock or other equity participations or interests,
including partnership interests, whether general or limited, and membership interests, whether
managing or non-managing, of such Person.



     “close of business” means 5:00 p.m. (New York City time).



     “Code” means the Internal Revenue Code of 1986, as amended.



     “Commission” means the Securities and Exchange Commission.



     “Common Stock” means, subject to Section 13.06, shares of Class A common stock of the Company,
par value $0.33 1/3 per share, at the date of this Indenture or shares of any class or classes
resulting from any reclassification or reclassifications thereof and that have no preference in
respect of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company and that are not subject to redemption by the
Company; provided that if at any time there shall be more than one such resulting class, the shares
of each such class then so issuable shall be substantially in the proportion which the total number
of shares of such class resulting from all such reclassifications bears to the total number of
shares of all such classes resulting from all such reclassifications.



     “Company” means Forest City Enterprises, Inc., an Ohio corporation, and subject to the
provisions of Article 10, shall include its successors and assigns and, to the extent the
obligations hereunder shall be to more than one entity pursuant to Section 13.06, shall include
each of such entities.



     “Company Order” means a written order of the Company, signed by (a) the Company’s Chief
Executive Officer, President, Executive or Senior Vice President, Managing Director or any Vice
President (whether or not designated by a number or numbers or word or words added before or after
the title “Vice President”) and (b) any such other officer designated in clause (a) of this
definition or the Company’s Treasurer or Assistant Treasurer or Secretary or any Assistant
Secretary, and delivered to the Trustee.



     “Corporate Trust Office” or other similar term means a corporate trust office of the Trustee
at which at any particular time its corporate trust business shall be administered, which office
is, at the date as of which this Indenture is dated, located at The Bank of New York Mellon Trust
Company, N.A., 2 North LaSalle Street, Chicago, Illinois 60602, Attention: Corporate Trust
Administration; Forest City Enterprises, Inc. or such other address as the Trustee may designate
from time to time by notice to the Holders and the Company.



     “Coupon Make-Whole Payment” shall have the meaning specified in Section 13.11(a).



3









 





     “Custodian” means The Bank of New York Mellon Trust Company, N.A., as custodian for The
Depository Trust Company, with respect to the Notes in global form, or any successor entity
thereto.



     “Daily Put Value” means, for each of the 10 consecutive VWAP Trading Days during the
Observation Period, one-tenth (1/10) of the product of (a) the Put Value Rate in effect on such
VWAP Trading Day and (b) the Daily VWAP of the Common Stock (or the Reference Property pursuant to
Section 13.06) on such day, as determined by the Company. Any such determination by the Company
will be conclusive absent manifest error.



     “Daily VWAP” for the Common Stock means, for any VWAP Trading Day, the per share
volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page
FCE/A <equity> VAP in respect of the period from 9:30 a.m. to 4:00 p.m. (New York City time)
on such VWAP Trading Day, or, in the case of Reference Property, the per unit volume-weighted
average price as displayed by Bloomberg (or if such volume-weighted average price is unavailable,
the market value of one share of Common Stock (or such unit of Reference Property) on such VWAP
Trading Day as the Board of Directors determines in good faith using a volume-weighted method).



     “Debt” means (without duplication), with respect to any Person, whether recourse is to all or
a portion of the assets of such Person and whether or not contingent, (i) every obligation of such
Person for money borrowed, (ii) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in connection with the
acquisition of property, assets or businesses, (iii) every reimbursement obligation of such Person
with respect to letters of credit, bankers’ acceptances or similar facilities issued for the
account of such Person, (iv) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (including securities repurchase agreements but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of business which are
not overdue or which are being contested in good faith), (v) every Capital Lease Obligation of such
Person, (vi) all Receivables Sales of such Person, together with any obligation of such Person to
pay any discount, interest, fees, indemnities, penalties, recourse, expenses or other amounts in
connection therewith, (vii) all Redeemable Stock issued by such Person, (viii) every obligation to
pay rent or other payment amounts of such Person with respect to any Sale and Leaseback Transaction
to which such Person is a party (including, if applicable, the full payment obligation of that
Person at expiry of the lease arrangement assuming no refinancing or third party sale), (ix) every
obligation under Interest Rate, Currency or Commodity Price Agreements of such Person and (x) every
obligation of the type referred to in clauses (i) through (ix) of another Person and all dividends
of another Person the payment of which, in either case, such Person has guaranteed or for which
such Person is responsible or liable, directly or indirectly, as obligor, guarantor or otherwise.
The “amount” or “principal amount” of Debt at any time of determination as used herein represented
by (a) any contingent Debt, shall be the maximum liability upon the occurrence of the contingency
giving rise to the obligation (unless the underlying contingency has not occurred and the
occurrence of the underlying contingency is entirely within the control of the Company), (b) any
Debt issued at a price that is less than the principal amount at maturity thereof, shall be the
amount of the liability in respect thereof



4









 







determined in accordance with generally accepted
accounting principles, (c) any Receivables Sale, shall be the amount of the unrecovered capital or
principal investment of the purchaser (other than the Company or a Wholly Owned Subsidiary of the
Company) thereof as of such time of determination, excluding amounts representative of yield or
interest earned on such
investment and (d) any Redeemable Stock, shall be the maximum fixed redemption or repurchase
price in respect thereof.



     “Default” means any event that is, or after notice or passage of time, or both, would be, an
Event of Default.



     “Defaulted Interest” shall have the meaning specified in Section 2.03.



     “Depositary” means, with respect to the Notes issuable or issued in whole or in part in global
form, the Person specified in Section 2.06(c) as the Depositary with respect to such Notes, until a
successor shall have been appointed and become such pursuant to the applicable provisions of this
Indenture, and thereafter, “Depositary” shall mean or include such successor.



     “Designated Event” means the occurrence of either a Fundamental Change or a Termination of
Trading.



     “Designated Event Company Notice” shall have the meaning specified in Section 14.01(b).



     “Designated Event Expiration Time” shall have the meaning specified in Section 14.01(b).



     “Designated Event Notice” shall have the meaning specified in Section 13.01(d).



     “Designated Event Purchase Date” shall have the meaning specified in Section 14.01(a).



     “Designated Event Purchase Notice” shall have the meaning specified in Section 14.01(a).



     “Designated Event Purchase Price” shall have the meaning specified in Section 14.01(a).



     “Distributed Property” shall have the meaning specified in Section 13.04(c).



     “Effective Date” shall have the meaning specified in Section 13.01(e)(ii).



     “Event of Default” means, with respect to the Notes, any event specified in Section 5.01,
continued for the period of time, if any, and after the giving of notice, if any, therein
designated.



     “Ex-Date” means, with respect to any issuance or distribution on the Common Stock or any other
equity security, the first date on which the shares of Common Stock or such other



5









 







equity security
trade on the relevant exchange or in the relevant market, regular way, without the right to receive
such issuance or distribution.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.



     “Exchange Agreement Global Note” shall have the meaning specified in Section 2.06(b).



     “Exchange Agreement Notes” shall have the meaning specified in Section 2.06(b).



     “Extension Fee” shall have the meaning specified in Section 5.01.



     “Extension Period” shall have the meaning specified in Section 5.01.



     “Filing Failure” shall have the meaning specified in Section 5.01.



     “Fiscal Year” means a fiscal year of the Company ending on January 31 of each calendar year.



     “Fundamental Change” will be deemed to have occurred at the time after the Notes are
originally issued that any of the following occurs:



     (1) (i) any Person, including any syndicate or group deemed to be a “person” under Section
13(d)(3) of the Exchange Act (other than the members of the Ratner, Miller or Shafran families who
are general partners of RMSLP (the “family interests”) and/or RMSLP), acquires Beneficial
Ownership, directly or indirectly, through a purchase, merger or other acquisition transaction or
series of transactions, of (A) shares of the Company’s capital stock entitling the person to
exercise 50% or more of the total voting power of all shares of the Company’s capital stock
entitled to vote generally in elections of directors or (B) 50% or more of the voting interest in
RMSLP, other than an acquisition by the Company, any of the Company’s Subsidiaries or any of the
Company’s employee benefit plans or (ii) an aggregate Beneficial Ownership of more than 30% of the
Common Stock then outstanding by the family interests and/or RMSLP other than upon the conversion
of shares of the Company’s Class B common stock into shares of Common Stock;



     (2) the Company merges, or consolidates with or into any other Person (other than a
Subsidiary), another Person merges with or into the Company, or the Company conveys, sells,
transfers or leases all or substantially all of the Company’s assets to another Person, other than
any transaction:




(i) that does not result in a reclassification, conversion, exchange or cancellation of the
outstanding Common Stock;




(ii) pursuant to which the holders of the Common Stock immediately prior to the transaction
have the entitlement to exercise, directly or indirectly, 50% or more of the



6









 






voting power of
all shares of the Company’s capital stock entitled to vote generally in the election of
directors of the continuing or surviving corporation immediately after the transaction; or




(iii) which is effected solely to change the Company’s jurisdiction of incorporation and
results in a reclassification, conversion or exchange of outstanding shares of the Common
Stock solely into shares of Common Stock of the surviving corporation.



     “Global Note” shall have the meaning specified in Section 2.06(b).



     “Indenture” means this instrument as originally executed or, if amended or supplemented as
herein provided, as so amended or supplemented.



     “Interest Payment Date” means April 15 and October 15 of each year, beginning on April 15,
2010; provided, however, that if any Interest Payment Date falls on a date that is not a Business
Day, such payment of interest will be postponed until the next succeeding Business Day, and no
interest or other amount will be paid as a result of such postponement.



     “Interest Rate, Currency or Commodity Price Agreement” of any Person means any forward
contract, futures contract, swap, option or other financial agreement or arrangement (including,
without limitation, caps, floors, collars and similar agreements) relating to, or the value of
which is dependent upon, interest rates, currency exchange rates or commodity prices or indices
(excluding contracts for the purchase or sale of goods in the ordinary course of business).



     “Last Reported Sale Price” means, with respect to the Common Stock or any other security for
which a Last Reported Sale Price must be determined, on any date, the closing sale price per share
of the Common Stock or unit of such other security (or, if no closing sale price is reported, the
average of the last bid and last ask prices or, if more than one in either case, the average of the
average last bid and the average last ask prices) on such date as reported in composite
transactions for the principal U.S. securities exchange on which it is then traded. If the Common
Stock or such other security is not listed for trading on a United States national or regional
securities exchange on the relevant date, the Last Reported Sale Price shall be the last quoted bid
price per share of Common Stock or such other security in the over-the-counter market on the
relevant date, as reported by the National Quotation Bureau or similar organization. In absence of
such quotation, the Last Reported Sale Price shall be the average of the mid-point of the last bid
and ask prices for the Common Stock or such other security on the relevant date from each of at
least three nationally recognized independent investment banking firms, selected from time to time
by the Board of Directors of the Company for this purpose. The Last Reported Sale Price shall be
determined without reference to extended or after hours trading. Any such determination by the
Company will be conclusive absent manifest error.



     “Market Disruption Event” means the occurrence or existence on any Scheduled Trading Day for
the Common Stock of any suspension of or limitation imposed on trading (by reason of movements in
price exceeding limits permitted by the relevant securities exchange or otherwise) in the Common
Stock on the relevant securities exchange or in any options contracts



7









 







or futures contracts relating
to the Common Stock on any relevant exchange if, in any such case, such suspension or limitation
occurs or exists during the one-hour period before the closing time of the relevant exchange on
such day.



     “Maturity Date” means October 15, 2014; provided, however, that if the Maturity Date falls on
a date that is not a Scheduled Trading Day, then the Maturity Date will be postponed until the next
succeeding Scheduled Trading Day, and no interest or other amount will be paid as a result of such
postponement.



     “Merger Event” shall have the meaning specified in Section 13.06.



     “Non-Recourse” as applied to any Debt means Debt of a Person (or any portion thereof) to the
extent that, under the terms thereof, no personal recourse may be had against such Person or any
Affiliate of such Person for the payment of all or a portion of the principal of or interest or
premium on such Debt, and enforcement of obligations on such Debt (except with respect to fraud,
willful misconduct, intentional misrepresentation, misapplication of funds, waste and undertakings
with respect to environmental matters) is limited only to recourse against interests in specified
assets and properties owned by such Person (the “Subject Assets”), accounts and proceeds arising
therefrom, and rights under purchase agreements or other agreements relating to such Subject
Assets.



     “Note” or “Notes” means any note or notes, as the case may be, authenticated and delivered
under this Indenture.



     “Noteholder” or “holder,” as applied to any Note, or other similar terms (but excluding the
term “beneficial holder”), means any person in whose name at the time a particular Note is
registered on the Note Register.



     “Note Register” shall have the meaning specified in Section 2.06(a).



     “Note Registrar” shall have the meaning specified in Section 2.06(a).



     “Observation Period” means, with respect to any Put Exercise Date, the 10 consecutive VWAP
Trading Day period beginning on and including the earlier of (i) the third Business Day immediately
following such Put Exercise Date (if such Business Day is also a VWAP Trading Day or, if not, then
the next VWAP Trading Day) or (ii) the VWAP Trading Day immediately following the Maturity Date.



     “Officers’ Certificate,” when used with respect to the Company, means a certificate signed by
(a) one of the President, the Chief Executive Officer, any Executive or Senior Vice President, or
any Vice President (whether or not designated by a number or numbers or word added before or after
the title “Vice President”) and (b) by any such other officer designated in (a) or by one of the
Treasurer or any Assistant Treasurer, Secretary or any Assistant Secretary or Controller of the
Company, which is delivered to the Trustee. Each such certificate shall include the statements
provided for in Section 15.05 if and to the extent required by the provisions of



8









 







such Section. One
of the officers giving an Officers’ Certificate pursuant to Section 5.08 shall be the principal
executive, financial or accounting officer of the Company.



     “opening of business” means 9:00 a.m. (New York City time).



     “Opinion of Counsel” means an opinion in writing signed by legal counsel, who may be an
employee of or counsel to the Company, which is delivered to the Trustee. Each such opinion shall
include the statements provided for in Section 15.05 if and to the extent required by the
provisions of such Section.



     “outstanding,” when used with reference to Notes, shall, subject to the provisions of Section
7.04, mean, as of any particular time, all Notes authenticated and delivered by the Trustee under
this Indenture, except:



     (i) Notes theretofore canceled by the Trustee or accepted by the Trustee for cancellation,



     (ii) Notes, or portions thereof, for the payment or purchase of which monies in the necessary
amount shall have been deposited in trust with the Trustee or with any Paying Agent (other than the
Company) or shall have been set aside and segregated in trust by the Company (if the Company shall
act as its own Paying Agent);



     (iii) Notes in lieu of which, or in substitution for which, other Notes shall have been
authenticated and delivered pursuant to the terms of Section 2.07 unless proof satisfactory to the
Trustee is presented that any such Notes are held by protected purchasers in due course; and



     (iv) Notes put to the Company pursuant to Article 13.



     “Paying Agent” shall have the meaning specified in Section 3.02.



     “Person” means an individual, a corporation, a limited liability company, an association, a
partnership, a joint venture, a joint stock company, a trust, an unincorporated organization or a
government or an agency or a political subdivision thereof, including any syndicate or group that
would be deemed to be a “person” under Section 13(d)(3) of the Exchange Act.



     “Portal Market” means The Portal Market operated by the Financial Industry Regulatory
Authority or any successor thereto.



     “Predecessor Note” of any particular Note means every previous Note evidencing all or a
portion of the same debt as that evidenced by such particular Note; and, for the purposes of this
definition, any Note authenticated and delivered under Section 2.07 in lieu of or in exchange for a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note that it replaces.



     “Purchase Agreement Global Note” shall have the meaning specified in Section 2.06(b).



     “Purchase Agreement Notes” shall have the meaning specified in Section 2.06(b).



9









 





     “Put Exercise Agent” shall have the meaning specified in Section 3.02.



     “Put Exercise Date” shall have the meaning specified in Section 13.02(c).



     “Put Exercise Notice” shall have the meaning specified in Section 13.02(c).



     “Put Right” shall have the meaning specified in Section 13.11(a).



     “Put Termination” shall have the meaning specified in Section 13.11(a).



     “Put Termination Date” shall have the meaning specified in Section 13.11(a).



     “Put Termination Notice” shall have the meaning specified in Section 13.11(a).



     “Put Termination Notice Date” shall have the meaning specified in Section 13.11(a).



     “Put Termination Trigger Event” shall have the meaning specified in Section 13.11(a).



     “Put Value Obligation” shall have the meaning specified in Section 13.01(a).



     “Put Value Price” means as of any date, $1,000 divided by the Put Value Rate as of such date.



     “Put Value Rate” shall have the meaning specified in Section 13.01(a).



     “Qualified Institutional Buyer” or “QIB” shall have the meaning specified in Rule 144A.



     “Receivables” means receivables, chattel paper, instruments, documents or intangibles
evidencing or relating to the right to payment of money.



     “Receivables Sale” of any Person means any sale of Receivables of such Person (pursuant to a
purchase facility or otherwise), other than in connection with a disposition of the business
operations of such Person relating thereto or a disposition of defaulted Receivables for purposes
of collection and not as a financing arrangement.



     “record date,” with respect to the payment of interest on any Interest Payment Date, shall
have the meaning specified in Section 2.03.



     “Redeemable Stock” of any Person means any Capital Stock of such Person that by its terms (or
by the terms of any security into which it is convertible or for which it is exchangeable) or
otherwise (including upon the occurrence of an event) matures or is required to be redeemed
(pursuant to any sinking fund obligation or otherwise) or is convertible into or exchangeable for
Debt or is redeemable at the option of the holder thereof, in whole or in part, at any time on or
prior to the date that is 91 days after the Maturity Date.



10









 





     “Reference Property” shall have the meaning specified in Section 13.06(b).



     “Related Party” means a director, officer or substantial security holder of the Company, as
defined in Section 312.03 of the Listed Company Manual of the New York Stock Exchange.



     “Resale Restriction Termination Date” shall have the meaning specified in Section 2.06(c).



     “Responsible Officer” when used with respect to the Trustee, shall mean an officer of the
Trustee in the Corporate Trust Office, having direct responsibility for the administration of this
Indenture, and also, with respect to a particular matter, any other officer to whom such matter is
referred because of such officer’s knowledge of and familiarity with the particular subject and who
shall have direct responsibility for the administration of this Indenture.



     “Restricted Security” or “Restricted Securities” has the meaning specified in Section 2.06(c).



     “RMSLP” means RMS, Limited Partnership, an Ohio limited partnership.



     “Rule 144A” means Rule 144A as promulgated under the Securities Act.



     “Sale and Leaseback Transaction” of any Person means an arrangement with any lender or
investor or to which such lender or investor is a party providing for the leasing by such Person of
any property or asset of such Person which has been or is being sold or transferred by such Person
more than 270 days after the acquisition thereof or the completion of construction or commencement
of operation thereof to such lender or investor or to any person to whom funds have been or are to
be advanced by such lender or investor on the security of such property or asset. The stated
maturity of such arrangement shall be the date of the last payment of rent or any other amount due
under such arrangement prior to the first date on which such arrangement may be terminated by the
lessee without payment of a penalty.



     “Scheduled Trading Day” means any day that is scheduled to be a Trading Day on the principal
U.S. national securities exchange or market on which the Common Stock is listed or admitted for
trading.



     “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.



     “Shelf Registration Statement” shall have the meaning specified in Section 13.11(a).



     “Spin-Off” shall have the meaning specified in Section 13.04(c).



     “Significant Subsidiary” means such Subsidiary of the Company as meets the definition of
“significant subsidiary” in Rule 1-02 of Regulation S-X promulgated by the Commission as in effect
on the original date of issuance of the Notes.



11









 





     “Stock Price” means the price paid per share of Common Stock in connection with a Fundamental
Change pursuant to which Additional Shares shall be added to the Put Value Rate as set forth in
Section 13.01(e) hereof, which shall be equal to the average of the Last Reported Sale Prices of
the Common Stock over the five consecutive Trading Day period ending on the Trading Day preceding
the Effective Date of the Fundamental Change.



     “Subsidiary” of the Company means (i) a corporation a majority of whose capital stock with
voting power, under ordinary circumstances, to elect directors is at the time, directly or
indirectly, owned by the Company, by the Company and one or more Subsidiaries of the Company or by
one or more Subsidiaries of the Company or (ii) any other Person (other than a corporation) in
which the Company, one or more Subsidiaries of the Company or the Company and one or more
Subsidiaries of the Company, directly or indirectly, at the date of determination thereof, has
greater than a 50% ownership interest.



     “subsidiary” of any Person means (i) a corporation more than 50% of the combined voting power
of the outstanding Voting Stock of which is owned, directly or indirectly, by such Person or by one
or more other subsidiaries of such Person or by such Person and one or more subsidiaries thereof,
(ii) a partnership of which such Person, or one or more other subsidiaries of such Person or such
Person and one or more other subsidiaries thereof, directly or indirectly, is the general partner
and has the power to direct the policies, management and affairs of the
partnership, (iii) a limited liability company of which such Person or one or more
subsidiaries of such Person or such Person and one or more subsidiaries of such Person, directly or
indirectly, is the managing member and has the power to direct the policies, management and affairs
of the company, or (iv) any other Person (other than a corporation, partnership or limited
liability company) in which such Person, or one or more other subsidiaries of such Person or such
Person and one or more other subsidiaries thereof, directly or indirectly, has at least a majority
ownership and power to direct the policies, management and affairs thereof.



     “Successor Company” shall have the meaning specified in Section 10.01(a).



     “Ten Day VWAP” means the arithmetic average of the Daily VWAP for the ten consecutive Trading
Days ending three Trading Days prior to the applicable Put Exercise Date.



     “Termination of Trading” means the occurrence if the Common Stock is neither listed for
trading on a U.S. national securities exchange nor approved for quotation on a U.S. system of
automated dissemination of quotations of securities prices similar to the NASDAQ Global Market
prior to its designation as a national securities exchange.



     “Termination Put Value Price” shall have the meaning specified in Section 13.11.



     “Trading Day” means a day during which (a) trading in Common Stock generally occurs and (b)
there is no Market Disruption Event.



     “Trading Price” with respect to the Notes, on any date of determination, means the average of
the secondary market bid quotations obtained by the Trustee for $2.0 million principal



12









 







amount of
Notes at approximately 3:30 p.m., New York City time, on such determination date from three
independent nationally recognized securities dealers selected by the Company; provided that if
three such bids cannot reasonably be obtained by the Trustee, but two such bids are obtained, then
the average of the two bids shall be used, and if only one such bid can reasonably be obtained by
the Trustee, that one bid shall be used. If the Trustee cannot reasonably obtain at least one bid
for $2.0 million principal amount of Notes from a nationally recognized securities dealer, then the
Trading Price per $1,000 principal amount of Notes will be deemed to be less than 98% of the
product of the Last Reported Sale Price of the Common Stock (as provided to the Trustee by the
Company) and the Put Value Rate. Any such determination by the Trustee will be conclusive absent
manifest error.



     “transfer” shall have the meaning specified in Section 2.06(c).



     “Trigger Event” shall have the meaning specified in Section 13.04(c).



     “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as it was in force at
the date of execution of this Indenture; provided however, that in the event the Trust Indenture
Act of 1939 is amended after the date hereof, the term “Trust Indenture Act” shall mean, to the
extent required by such amendment, the Trust Indenture Act of 1939, as so amended.



     “Trustee” means The Bank of New York Mellon Trust Company, N.A., and its successors and any
corporation resulting from or surviving any consolidation or merger to which
it or its successors may be a party and any successor trustee at the time serving as successor
trustee hereunder.



     “VWAP Market Disruption Event” means the occurrence or existence for more than a one-half hour
period in the aggregate on any Scheduled Trading Day for the Common Stock or Reference Property of
any suspension or limitation imposed on trading (by reason of movements in price exceeding limits
permitted by the relevant securities exchange or otherwise) in the Common Stock or Reference
Property on the relevant securities exchange or in any options contracts or future contracts
relating to the Common Stock or Reference Property on the relevant exchange, and such suspension or
limitation occurs or exists at any time before 1:00 p.m. (New York City time) on such Scheduled
Trading Day.



     “VWAP Trading Day” means a Scheduled Trading Day during which (a) trading in Common Stock or
Reference Property generally occurs and (b) there is no VWAP Market Disruption Event.



     “Voting Stock” of any Person means Capital Stock of such Person which ordinarily has voting
power for the election of directors (or persons performing similar functions) of such Person,
whether at all times or only so long as no senior class of securities has such voting power by
reason of any contingency.



     “Wholly Owned Subsidiary” of any Person means a subsidiary of such Person all of the
outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying



13









 







shares) shall at the time be owned by such Person or by one or more Wholly Owned Subsidiaries of
such Person or by such Person and one or more Wholly Owned Subsidiaries of such Person.



     Section 1.02. Incorporation by Reference of Trust Indenture Act.



     This Indenture is subject to the mandatory provisions of the Trust Indenture Act, which are
incorporated by reference in and made a part of this Indenture. The following Trust Indenture Act
terms have the following meanings:



     “indenture securities” means the Notes.



     “indenture security holder” means a Holder.



     “indenture to be qualified” means this Indenture.



     “indenture trustee” or “institutional trustee” means the Trustee.



     All other terms in this Indenture that are defined by the Trust Indenture Act, defined by it
by reference to another statute or defined by Commission rule have the meanings assigned to them by
such definitions. If any provision hereof limits, qualifies or conflicts with another provision
hereof which is required to be included in this Indenture by the Trust Indenture Act, such required
provision shall control.



ARTICLE 2

Issue, Description, Execution, Registration and Exchange of Notes




     Section 2.01. Designation and Amount. The Notes shall be designated as the “3.625% Puttable
Equity-Linked Senior Notes due 2014.” The aggregate principal amount of Notes that may be
authenticated and delivered under this Indenture is initially limited to $200,000,000, subject to
Section 2.11 and except for Notes authenticated and delivered upon registration or transfer of, or
in exchange for, or in lieu of other Notes pursuant to Section 2.06, Section 2.07 and Section 9.04.



     Section 2.02. Form of Notes. The Notes and the Trustee’s certificate of authentication to be
borne by such Notes shall be substantially in the respective forms set forth in Exhibit A.



     Any Global Note may be endorsed with or have incorporated in the text thereof such legends or
recitals or changes not inconsistent with the provisions of this Indenture as may be required by
the Custodian, the Depositary or by the Financial Industry Regulatory Authority in order for the
Notes to be tradable on The Portal Market or as may be required for the Notes to be tradable on any
other market developed for trading of securities pursuant to Rule 144A or required to comply with
any applicable law or any regulation thereunder or with the rules and regulations of any securities
exchange or automated quotation system upon which the Notes may



14









 







be listed or traded or designated
for issuance or to conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Notes are subject.



     Any of the Notes may have such letters, numbers or other marks of identification and such
notations, legends or endorsements as the officers executing the same may approve (execution
thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions
of this Indenture, or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any securities exchange or automated quotation
system on which the Notes may be listed or designated for issuance, or to conform to usage or to
indicate any special limitations or restrictions to which any particular Notes are subject.



     Each Global Note shall represent such principal amount of the outstanding Notes as shall be
specified therein and shall provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of
outstanding Notes represented thereby may from time to time be increased or reduced to reflect
repurchases, put exercises, transfers or exchanges permitted hereby. Any endorsement of any Global
Note to reflect the amount of any increase or decrease in the amount of outstanding Notes
represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee,
in such manner and upon instructions given by the holder of such Notes in accordance with this
Indenture. Payment of principal and accrued and unpaid interest on each Global Note shall be made
to the holder of such Note on the date of payment, unless a record date or other means of
determining holders eligible to receive payment is provided for herein.



     The terms and provisions contained in the form of Note attached as Exhibit A hereto are
incorporated herein and shall constitute, and are hereby expressly made, a part of this Indenture
and to the extent applicable, the Company and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.



     Section 2.03. Date and Denomination of Notes; Payments of Interest. The Notes shall be
issuable in registered form without coupons in denominations of $1,000 principal amount and
integral multiples thereof. Each Note shall be dated the date of its authentication and shall bear
interest from the date specified on the face of the form of Note attached as Exhibit A hereto.
Interest on the Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day
months.



     The Person in whose name any Note (or its Predecessor Note) is registered on the Note Register
at the close of business on any record date with respect to any Interest Payment Date shall be
entitled to receive the interest payable on such Interest Payment Date. Interest shall be payable
at the office of the Company maintained by the Company for such purposes in the Borough of
Manhattan, City of New York, which shall initially be an office or agency of the Trustee. The
Company shall pay interest (i) on any Notes in certificated form by check mailed to the address of
the Person entitled thereto as it appears in the Note Register (or upon written application by such
Person to the Note Registrar not later than the relevant record date, by wire transfer in
immediately available funds to such Person’s account within the United States, if such



15









 







Person is
entitled to interest on an aggregate principal in excess of $1,000,000) or (ii) on any Global Note
by wire transfer of immediately available funds to the account of the Depositary or its nominee.
The term “record date” with respect to any Interest Payment Date shall mean the March 31 or
September 30 preceding the applicable April 15 or October 15 Interest Payment Date, respectively.



     Any interest on any Note which is payable, but is not punctually paid or duly provided for, on
any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable
to the Noteholder on the relevant record date by virtue of its having been such Noteholder, and
such Defaulted Interest shall be paid by the Company, at its election in each case, as provided in
clause (a) or (b) below:



     (a) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Notes (or their respective Predecessor Notes) are registered at the close of business on
a special record date for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Note and the date of the proposed payment (which shall be not
less than twenty-five (25) days after the receipt by the Trustee of such notice, unless the Trustee
shall consent to an earlier date), and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of
the proposed payment, such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the Company shall fix a
special record date for the payment of such Defaulted Interest which shall be not more than fifteen
(15) days and not less than ten (10) days prior to the
date of the proposed payment, and not less than ten (10) days after the receipt by the Trustee
of the notice of the proposed payment. The Company shall promptly notify the Trustee in writing of
such special record date and the Trustee, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the special record date
therefor to be mailed, first-class postage prepaid, to each holder at its address as it appears in
the Note Register, not less than ten (10) days prior to such special record date. Notice of the
proposed payment of such Defaulted Interest and the special record date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names the Notes (or their
respective Predecessor Notes) are registered at the close of business on such special record date
and shall no longer be payable pursuant to the following clause (b) of this Section 2.03.



     (b) The Company may make payment of any Defaulted Interest in any other lawful manner not
inconsistent with the requirements of any securities exchange or automated quotation system on
which the Notes may be listed or designated for issuance, and upon such notice as may be required
by such exchange or automated quotation system, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.



     Section 2.04. Reserved.



16









 





     Section 2.05. Execution, Authentication and Delivery of Notes. The Notes shall be signed in
the name and on behalf of the Company by the manual or facsimile signature of its Chairman or
Vice-Chairman of the Board of Directors, Chief Executive Officer, President, any of its Executive
or Senior Vice Presidents, or any of its Vice Presidents (whether or not designated by a number or
numbers or word or words added before or after the title “Vice President”). The signature of any of
these officers on the Notes shall be manual, facsimile, in the form of a .pdf attachment or by
other means of electronic transmission. Notes shall be dated the date of their authentication.



     At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver additional Notes executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such Notes, and the Trustee in
accordance with such Company Order shall authenticate and deliver such Notes, without any further
action by the Company hereunder.



     Only such Notes as shall bear thereon a certificate of authentication substantially in the
form set forth on the form of Note attached as Exhibit A hereto, manually executed by the Trustee
(or an authenticating agent appointed by the Trustee as provided by Section 15.11), shall be
entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate by the Trustee (or such an authenticating agent) upon any Note executed by the Company
shall be conclusive evidence that the Note so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the benefits of this Indenture.



     In authenticating additional Notes after the date hereof, and accepting the additional
responsibilities under this Indenture in relation to such Notes, the Trustee shall receive, and,
shall be fully protected in relying upon:



     (a) A copy of the resolution or resolutions of the Board of Directors in or pursuant to which
the terms and form of the Notes were established, certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and to be in full
force and effect as of the date of such certificate, and if the terms and form of such Notes are
established by an Officers’ Certificate pursuant to general authorization of the Board of
Directors, such Officers’ Certificate;



     (b) an executed supplemental indenture, if any;



     (c) an Officers’ Certificate delivered in accordance with Section 15.05; and



     (d) an Opinion of Counsel which shall state:




     (i) that the form of such Notes has been established by a supplemental indenture or by
or pursuant to a resolution of the Board of Directors in accordance with Sections 2.01 and
2.02 and in conformity with the provisions of this Indenture;



17









 






     (ii) that the terms of such Notes have been established in accordance with Section 2.01
and in conformity with the other provisions of this Indenture;




     (iii) that such Notes, when authenticated and delivered by the Trustee and issued by
the Company in the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of the Company, enforceable
in accordance with their terms, subject to bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or other laws of general applicability relating to or
affecting the enforcement of creditors’ rights and to general equity principles regardless
of whether such enforceability is considered in a proceeding of law or equity; and




     (iv) that all laws and requirements in respect of the execution and delivery by the
Company of such Notes have been complied with.



     In case any officer of the Company who shall have signed any of the Notes shall cease to be
such officer before the Notes so signed shall have been authenticated and delivered by the Trustee,
or disposed of by the Company, such Notes nevertheless may be authenticated and delivered or
disposed of as though the Person who signed such Notes had not ceased to be such officer of the
Company: and any Note may be signed on behalf of the Company by such Persons as, at the actual date
of the execution of such Note, shall be the proper officers of the Company, although at the date of
the execution of this Indenture any such person was not such an officer.



     Section 2.06. Exchange and Registration of Transfer of Notes; Restrictions on Transfer;
Depositary.



     (a) The Company shall cause to be kept at the Corporate Trust Office a register (the register
maintained in such office and in any other office or agency of the Company designated pursuant to
Section 3.02 being herein sometimes collectively referred to as the “Note Register”) in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Notes and of transfers of Notes. Such register shall be in written form or in any
form capable of being converted into written form within a reasonable period of time. The Trustee
is hereby appointed “Note Registrar” for the purpose of registering Notes and transfers of Notes as
herein provided. The Company may appoint one or more co-registrars in accordance with Section 3.02.



     Upon surrender for registration of transfer of any Note to the Note Registrar or any
co-registrar, and satisfaction of the requirements for such transfer set forth in this Section
2.06, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes of any authorized denominations and of
a like aggregate principal amount and bearing such restrictive legends as may be required by this
Indenture.



     Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at any such office or



18









 







agency
maintained by the Company pursuant to Section 3.02. Whenever any Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes
which the Noteholder making the exchange is entitled to receive, bearing registration numbers not
contemporaneously outstanding.



     All Notes presented or surrendered for registration of transfer or for exchange, repurchase or
put exercise shall (if so required by the Company, the Trustee, the Note Registrar or any
co-registrar) be duly endorsed, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company and duly executed, by the Noteholder thereof or his
attorney-in-fact duly authorized in writing.



     No service charge shall be charged to the Noteholder for any exchange or registration of
transfer of Notes, but the Company or the Trustee may require payment of a sum sufficient to cover
any tax, assessments or other governmental charges that may be imposed in connection therewith.



     None of the Company, the Trustee, the Note Registrar or any co-registrar shall be required to
exchange or register a transfer of (a) any Notes surrendered for put exercise or, if a portion of
any Note is surrendered for put exercise, such portion thereof surrendered for put exercise or (b)
any Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn) except in
accordance with Article 13 for put exercise and Article 14 for repurchase hereof, respectively.



     All Notes issued upon any registration of transfer or exchange of Notes in accordance with
this Indenture shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture as the Notes surrendered upon such registration
of transfer or exchange.



     (b) So long as the Notes are eligible for book-entry settlement with the Depositary, unless
otherwise required by law, all Notes shall be represented by one or more Notes in global form as
follows: (i) Notes initially sold pursuant to an exchange agreement (“Exchange Agreement Notes”)
shall be issued initially in the form of one or more permanent global notes in definitive, fully
registered form (collectively, the “Exchange Agreement Global Note”) and (ii) Notes initially sold
pursuant to a purchase agreement (“Purchase Agreement Notes”) shall be issued initially in the form
of one or more temporary global notes (collectively, the “Purchase Agreement Global Note” and,
together with the Exchange Agreement Global Note, each, a “Global Note”) registered in the name of
the Depositary or the nominee of the Depositary. The transfer and exchange of beneficial interests
in a Global Note, which does not involve the issuance of a definitive Note, shall be effected
through the Depositary (but not the Trustee or the Custodian) in accordance with this Indenture
(including the restrictions on transfer set forth herein) and the procedures of the Depositary
therefor.



     (c) Every Purchase Agreement Note (together with any Common Stock issued upon the exercise of
a put of such Notes and required to bear the legend set forth in Section 2.06(d), collectively, the
“Restricted Securities”) shall be subject to the restrictions on transfer set forth



19









 







in this Section
2.06(c) (including the legend set forth below), unless such restrictions on transfer shall be
waived by written consent of the Company, and the holder of each such Restricted Security, by such
holder’s acceptance thereof, agrees to be bound by all such restrictions on transfer. As used in
Section 2.06(c) and Section 2.06(d), the term “transfer” encompasses any sale, pledge, transfer or
other disposition whatsoever of any Restricted Security.



     Until the date (the “Resale Restriction Termination Date”) that is six months after the last
date of original issuance of the Purchase Agreement Notes, or such other period of time as
permitted by Rule 144(d) under the Securities Act or any successor provision thereto, any
certificate evidencing a Purchase Agreement Note (and all securities issued in exchange therefor or
substitution thereof, other than Common Stock, if any, issued upon put exercise thereof which shall
bear the legend set forth in Section 2.06(d), if applicable) shall bear a legend in substantially
the following form (unless such Notes have been transferred pursuant to a registration statement
that has become or been declared effective under the Securities Act and that continues to be
effective at the time of such transfer, pursuant to the exemption from registration provided by
Rule 144 or any similar provision then in force under the Securities Act, or unless otherwise
agreed by the Company in writing, with notice thereof to the Trustee):



     THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT’’), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER’’ (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT), (2) AGREES THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(d) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THIS NOTE OR THE COMMON STOCK ISSUABLE UPON A
PUT OF THIS NOTE EXCEPT (A) TO FOREST CITY ENTERPRISES, INC., OR ANY SUBSIDIARY THEREOF, (B) TO A
QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (D) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH
CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER), (3) PRIOR TO SUCH TRANSFER (OTHER THAN A
TRANSFER PURSUANT TO CLAUSES 2(A), 2(B) AND 2(D) ABOVE), IT WILL FURNISH TO THE BANK OF NEW YORK
MELLON TRUST COMPANY, N.A., AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE TRUSTEE MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND (4) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED PRIOR TO EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE NOTE EVIDENCED HEREBY UNDER RULE



20









 







144(d) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE
REMOVED UPON THE EARLIER OF THE TRANSFER OF THIS NOTE PURSUANT TO CLAUSE 2(D) ABOVE OR UPON ANY
TRANSFER OF THIS NOTE UNDER RULE 144(d) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION). THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
NOTE IN VIOLATION OF THE FOREGOING RESTRICTION.



     No transfer of any Purchase Agreement Note prior to the Resale Restriction Termination Date
will be registered by the Note Registrar unless the applicable box on the Form of Assignment and
Transfer has been checked.



     Any Purchase Agreement Note (or security issued in exchange or substitution therefor) as to
which such restrictions on transfer shall have expired in accordance with their terms may, upon
surrender of such Note for exchange to the Note Registrar in accordance with the provisions of this
Section 2.06, be exchanged for a new Note or Notes, of like tenor and aggregate principal amount,
which shall not bear the restrictive legend required by this Section 2.06(c). The Company shall
notify the Trustee upon the occurrence of the Resale Restriction Termination Date and promptly
after a Registration Statement with respect to any Notes or the Common Stock has been declared
effective under the Securities Act.



     Notwithstanding any other provisions of this Indenture, a Global Note may not be transferred
as a whole or in part except (i) by the Depositary to a nominee of the Depositary or by a nominee
of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor Depositary and (ii) for
transfers of portions of a Global Note in certificated form made upon request of a member of, or a
participant in, the Depositary (for itself or on behalf of a beneficial owner) by written notice
given to the Trustee by or on behalf of the Depositary in accordance with customary procedures of
the Depositary and in compliance with this Section.



     The Depositary shall be a clearing agency registered under the Exchange Act. The Company
initially appoints The Depository Trust Company to act as Depositary with respect to
each Global Note. Initially, the Global Note shall be issued to the Depositary, registered in
the name of Cede & Co., as the nominee of the Depositary, and deposited with the Trustee as
custodian for Cede & Co.



     If at any time the Depositary for a Global Note (i) notifies the Company that it is unwilling
or unable to continue as depositary for such Note or (ii) ceases to be registered as a clearing
agency under the Exchange Act, the Company may appoint a successor Depositary with respect to such
Note. If (A) a successor Depositary for such Global Note is not appointed by the Company within
ninety (90) days after the Company receives such notice or the Depositary ceasing to be a
registered clearing agency, (B) the Company, at its option, notifies the Trustee that it elects to
cause the issuance of Notes in definitive form in exchange for all or any part of the Notes
represented by a Global Note, subject to the procedures of the Depositary, or (C) an Event of
Default has occurred and is continuing and the Note Registrar has received a request



21









 







from the
Depositary for the issuance of Notes in definitive form in exchange for a Global Note, the Company
will execute, and the Trustee, upon receipt of an Officers’ Certificate for the authentication and
delivery of Notes, will authenticate and deliver Notes in definitive form in an aggregate principal
amount equal to the principal amount of such Global Note, in exchange for such Global Note, and
upon delivery of the Global Note to the Trustee such Global Note shall be canceled.



     Definitive Notes issued in exchange for all or a part of any Global Note pursuant to this
Section 2.06(c) shall be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. Upon execution and authentication, the Trustee shall deliver such definitive
Notes to the Persons in whose names such definitive Notes are so registered.



     At such time as all interests in a Global Note have been put, canceled, repurchased or
transferred, such Global Note shall be, upon receipt thereof, canceled by the Trustee in accordance
with standing procedures and instructions existing between the Depositary and the Custodian. At any
time prior to such cancellation, if any interest in a Global Note is exchanged for definitive
Notes, put, canceled, repurchased or transferred to a transferee who receives definitive Notes
therefor or any definitive Note is exchanged or transferred for part of such Global Note, the
principal amount of such Global Note shall, in accordance with the standing procedures and
instructions existing between the Depositary and the Custodian, be appropriately reduced or
increased, as the case may be, and an endorsement shall be made on such Global Note, by the Trustee
or the Custodian, at the direction of the Trustee, to reflect such reduction or increase.



     None of the Company, the Trustee nor any agent of the Company or the Trustee will have any
responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Note or maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.



     (d) Until the Resale Restriction Termination Date, any stock certificate representing Common
Stock issued upon a put of a Purchase Agreement Note shall bear a legend in substantially the
following form (unless such Note or such Common Stock has been transferred pursuant to a
registration statement that has become or been declared effective under the
Securities Act and that continues to be effective at the time of such transfer or pursuant to
the exemption from registration provided by Rule 144 under the Securities Act or any similar
provision then in force under the Securities Act, or such Common Stock has been issued upon a put
of Purchase Agreement Notes that have been transferred pursuant to a registration statement that
has become or been declared effective under the Securities Act and that continues to be effective
at the time of such transfer or pursuant to the exemption from registration provided by Rule 144
under the Securities Act, or unless otherwise agreed by the Company with written notice thereof to
the Trustee and any transfer agent for the Common Stock):



     THE CLASS A COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED



22









 







(THE “SECURITIES ACT’’), OR ANY STATE SECURITIES LAWS, AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. THE HOLDER
HEREOF AGREES THAT UNTIL THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE CLASS A
COMMON STOCK EVIDENCED HEREBY UNDER RULE 144(d) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION), (1) IT WILL NOT RESELL OR OTHERWISE TRANSFER THE CLASS A COMMON STOCK EVIDENCED HEREBY
EXCEPT (A) TO FOREST CITY ENTERPRISES, INC. OR TO ANY SUBSIDIARY THEREOF, (B) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (C)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT
(AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER); (2) PRIOR TO SUCH TRANSFER
(OTHER THAN A TRANSFER PURSUANT TO CLAUSES 1(A) OR 1(C) ABOVE), IT WILL FURNISH TO NATIONAL CITY
BANK, AS TRANSFER AGENT (OR A SUCCESSOR TRANSFER AGENT), SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT; AND (3) IT WILL DELIVER TO EACH PERSON TO WHOM THE CLASS A
COMMON STOCK EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 1(C) ABOVE)
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED UPON THE EARLIER
OF THE TRANSFER OF THE CLASS A COMMON STOCK EVIDENCED HEREBY PURSUANT TO CLAUSE 1(C) ABOVE OR UPON
ANY TRANSFER OF THE CLASS A COMMON STOCK EVIDENCED HEREBY UNDER RULE 144(d) UNDER THE SECURITIES
ACT (OR ANY SUCCESSOR PROVISION).



          Any such Common Stock as to which such restrictions on transfer shall have expired in
accordance with their terms may, upon surrender of the certificates representing such shares of
Common Stock for exchange in accordance with the procedures of the transfer agent for the Common
Stock, be exchanged for a new certificate or certificates for a like aggregate number of shares of
Common Stock, which shall not bear the restrictive legend required by this Section 2.06(d).




     (e) Notwithstanding any provision of Section 2.06 to the contrary, in the event Rule 144(d) as
promulgated under the Securities Act (or any successor rule) is amended to change the six-month
period under Rule 144(d) (or the corresponding period under any successor rule), from and after
receipt by the Trustee of the Officers’ Certificate and Opinion of Counsel provided for in this
Section 2.06(e), (i) each reference in Section 2.06(c) to “six months” and in the restrictive
legend set forth in such paragraph to “SIX MONTHS” shall be deemed for all purposes hereof to be
references to such changed period, (ii) each reference in Section 2.06(d) to “six months” and in
the restrictive legend set forth in such paragraph to “SIX MONTHS” shall be deemed for all purposes
hereof to be references to such changed period and (iii) all corresponding references in the Notes
(including the definition of Resale Restriction Termination Date) and the restrictive



23









 







legends
thereon shall be deemed for all purposes hereof to be references to such changed period, provided
that such changes shall not become effective if they are otherwise prohibited by, or would
otherwise cause a violation of, the then-applicable federal securities laws. The provisions of
this Section 2.06(e) will not be effective until such time as the Opinion of Counsel and Officers’
Certificate have been received by the Trustee hereunder. This Section 2.06(e) shall apply to
successive amendments to Rule 144(d) (or any successor rule) changing the holding period
thereunder.



     Section 2.07. Mutilated, Destroyed, Lost or Stolen Notes. In case any Note shall become
mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and upon its
written request the Trustee or an authenticating agent appointed by the Trustee shall authenticate
and deliver, a new Note, bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Note, or in lieu of and in substitution for the Note so destroyed,
lost or stolen. In every case the applicant for a substituted Note shall furnish to the Company, to
the Trustee and, if applicable, to such authenticating agent such security or indemnity as may be
required by them to save each of them harmless from any loss, liability, cost or expense caused by
or connected with such substitution, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Company, to the Trustee and, if applicable, to such
authenticating agent evidence to their satisfaction of the destruction, loss or theft of such Note
and of the ownership thereof.



     The Trustee or such authenticating agent may authenticate any such substituted Note and
deliver the same upon the receipt of such security or indemnity as the Trustee, the Company and, if
applicable, such authenticating agent may require. Upon the issuance of any substituted Note, the
Company or the Trustee may require the payment by the holder of a sum sufficient to cover any tax,
assessment or other governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. In case any Note which has matured or is about to mature or has been
tendered for repurchase upon a Designated Event or is about to be put to the Company shall become
mutilated or be destroyed, lost or stolen, the Company may, in its sole discretion, instead of
issuing a substitute Note, pay or authorize the payment or the put exercise of the same (without
surrender thereof except in the case of a mutilated Note), as the case may be, if the applicant for
such payment or put exercise shall furnish to the Company, to the Trustee and, if applicable, to
such authenticating agent such security or indemnity as may be required by them to save each of
them harmless for any loss, liability, cost or expense caused by or connected with such
substitution, and, in every case of destruction, loss or theft, evidence satisfactory to the
Company, the Trustee and, if applicable, any Paying Agent or Put Exercise Agent evidence of
their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof.



     Every substitute Note issued pursuant to the provisions of this Section 2.07 by virtue of the
fact that any Note is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Note shall be found at any
time, and shall be entitled to all the benefits of (but shall be subject to all the limitations set
forth in) this Indenture equally and proportionately with any and all other Notes duly issued
hereunder. To the extent permitted by law, all Notes shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the replacement or payment



24









 







or
put exercise or repurchase of mutilated, destroyed, lost or stolen Notes and shall preclude any and
all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment or put exercise of negotiable instruments
or other securities without their surrender.



     Section 2.08. Temporary Notes. Pending the preparation of Notes in certificated form, the
Company may execute and the Trustee or an authenticating agent appointed by the Trustee shall, upon
written request of the Company, authenticate and deliver temporary Notes (printed or lithographed).
Temporary Notes shall be issuable in any authorized denomination, and substantially in the form of
the Notes in certificated form but with such omissions, insertions and variations as may be
appropriate for temporary Notes, all as may be determined by the Company. Every such temporary Note
shall be executed by the Company and authenticated by the Trustee or such authenticating agent upon
the same conditions and in substantially the same manner, and with the same effect, as the Notes in
certificated form. Without unreasonable delay the Company will execute and deliver to the Trustee
or such authenticating agent Notes in certificated form (other than in the case of Notes in global
form) and thereupon any or all temporary Notes (other than any Global Note) may be surrendered in
exchange therefor, at each office or agency maintained by the Company pursuant to Section 3.02 and
the Trustee or such authenticating agent shall authenticate and deliver in exchange for such
temporary Notes an equal aggregate principal amount of Notes in certificated form. Such exchange
shall be made by the Company at its own expense and without any charge therefor. Until so
exchanged, the temporary Notes shall in all respects be entitled to the same benefits and subject
to the same limitations under this Indenture as Notes in certificated form authenticated and
delivered hereunder.



     Section 2.09 Cancellation of Notes Paid, Etc. All Notes surrendered for the purpose of
payment, repurchase, put exercise, exchange or registration of transfer, shall, if surrendered to
the Company or any Paying Agent or any Note Registrar or any Put Exercise Agent, be surrendered to
the Trustee and promptly canceled by it, or, if surrendered to the Trustee, shall be promptly
canceled by it, and no Notes shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Indenture. The Trustee shall dispose of canceled Notes in accordance with
its customary procedures and, after such disposal, shall deliver a certificate of such disposal to
the Company, at the Company’s written request. If the Company shall acquire any of the Notes, such
acquisition shall not operate as satisfaction of the debt represented by such Notes unless and
until the same are delivered to the Trustee for cancellation.



     Section 2.10. CUSIP Numbers. The Company in issuing the Notes may use “CUSIP” numbers (if
then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in all notices to
Noteholders as a convenience to holders of the Notes; provided, that any such notice may state that
no representation is made as to the correctness of such numbers either as printed on the Notes or
on such notice and that reliance may be placed only on the other identification numbers printed on
the Notes. The Company will promptly notify the Trustee in writing of any change in the “CUSIP”
numbers.



     Section 2.11. Additional Notes, Repurchases. The Company may, without the consent of the
Noteholders and notwithstanding Section 2.01, reopen this Indenture and issue additional



25









 







Notes
hereunder with the same terms and with the same CUSIP number as the Exchange Agreement Notes or the
Purchase Agreement Notes initially issued hereunder, as applicable, in an unlimited aggregate
principal amount, which will form the same series with the Notes initially issued hereunder;
provided that no such additional Notes may be issued unless fungible with the Notes initially
issued hereunder for U.S. federal income tax purposes. The Company may also from time to time
repurchase the Notes in tender offers, open market purchases or negotiated transactions without
prior notice to Noteholders.



ARTICLE 3

Particular Covenants of the Company




     Section 3.01. Payment of Principal and Interest. The Company covenants and agrees that it
will cause to be paid the principal of, and accrued and unpaid interest on, each of the Notes and
if applicable, payment of the Put Value Obligation, at the places, at the respective times and in
the manner provided herein and in the Notes. Each installment of accrued and unpaid interest on the
Notes due on any Interest Payment Date may be paid by mailing checks for the amount payable to or
upon the written order of the Noteholders entitled thereto as they shall appear on the registry
books of the Company, provided that, with respect to any Noteholder with an aggregate principal
amount in excess of $1,000,000, at the application of such holder in writing to the Note Registrar
not later than the relevant record date, accrued and unpaid interest on such holder’s Notes shall
be paid by wire transfer in immediately available funds to such holder’s account in the United
States supplied by such holder from time to time to the Trustee and Paying Agent (if different from
Trustee); provided further that payment of accrued and unpaid interest made to the Depositary shall
be paid by wire transfer in immediately available funds in accordance with such wire transfer
instructions and other procedures provided by the Depositary from time to time.



     Section 3.02. Maintenance of Office or Agency. The Company will maintain in the Borough of
Manhattan, The City of New York, an office or agency where the Notes may be surrendered for
registration of transfer or exchange or for presentation for payment or repurchase
(“Paying Agent”) or for put exercise (“Put Exercise Agent”) and where notices and demands to
or upon the Company in respect of the Notes and this Indenture may be served. The Company will give
prompt written notice to the Trustee of the location, and any change in the location, of such
office or agency not designated or appointed by the Trustee. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office or the office or agency of the Trustee in the Borough of Manhattan, The City
of New York.



     The Company may also from time to time designate one or more other offices or agencies where
the Notes may be presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the Borough



26









 







of Manhattan,
The City of New York, for such purposes. The Company will give prompt written notice to the Trustee
of any such designation or rescission and of any change in the location of any such other office or
agency. The terms Paying Agent and Put Exercise Agent include any such additional or other offices
or agencies, as applicable.



     The Company hereby initially designates the Trustee as the Paying Agent, Note Registrar,
Custodian and Put Exercise Agent and the Corporate Trust Office and the office or agency of the
Trustee in the Borough of Manhattan shall be considered as one such office or agency of the Company
for each of the aforesaid purposes.



     So long as the Trustee is the Note Registrar, the Trustee agrees to mail, or cause to be
mailed, the notices set forth in Section 6.10(a) and the third paragraph of Section 6.11.



     Section 3.03. Appointments to Fill Vacancies in Trustee’s Office. The Company, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided
in Section 6.10, a Trustee, so that there shall at all times be a Trustee hereunder.



     Section 3.04. Provisions as to Paying Agent.



     (a) If the Company shall appoint a Paying Agent other than the Trustee or if the Trustee shall
appoint such a Paying Agent, the Company will cause such Paying Agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions
of this Section 3.04:




     (i) that it will hold all sums held by it as such agent for the payment of the
principal of, and accrued and unpaid interest on, the Notes (whether such sums have been
paid to it by the Company) in trust for the benefit of the holders of the Notes;




     (ii) that it will give the Trustee notice of any failure by the Company to make any
payment of the principal of, and accrued and unpaid interest on, the Notes when the same
shall be due and payable; and




     (iii) that at any time during the continuance of an Event of Default, upon request of
the Trustee, it will forthwith pay to the Trustee all sums so held in trust.



     The Company shall, on or before each due date of the principal of, or accrued and unpaid
interest on the Notes, deposit with the Paying Agent a sum sufficient to pay such principal or
accrued and unpaid interest and (unless such Paying Agent is the Trustee) the Company will promptly
notify the Trustee in writing of any failure to take such action, provided that if such deposit is
made on the due date, such deposit must be received by the Paying Agent by 11:00 a. m., New York
City time, on such date.



     (b) If the Company shall act as its own Paying Agent, it will, on or before each due date of
the principal of and accrued and unpaid interest on the Notes, set aside, segregate and hold in
trust for the benefit of the holders of the Notes a sum sufficient to pay such principal and
accrued and unpaid interest so becoming due and will notify the Trustee in writing of any failure



27









 







to take such action and of any failure by the Company to make any payment of the principal of and
accrued and unpaid interest on the Notes, when the same shall become due and payable.



     (c) Anything in this Section 3.04 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust by the Company or any Paying
Agent hereunder as required by this Section 3.04, such sums to be held by the Trustee upon the
trusts herein contained and upon such payment by the Company or any Paying Agent to the Trustee,
the Company or such Paying Agent shall be released from all further liability with respect to such
sums.



     (d) Anything in this Section 3.04 to the contrary notwithstanding, the agreement to hold sums
in trust as provided in this Section 3.04 is subject to Section 11.03 and Section 11.04.



     Section 3.05. Existence. Subject to Article 10, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate existence.



     Section 3.06. Rule 144A Information Requirement and Annual Reports.



     (a) At any time the Company is not subject to Sections 13 or 15(d) of the Exchange Act, the
Company shall, so long as any of the Notes shall, at such time, constitute “Restricted Securities”
within the meaning of Rule 144(a)(3) under the Securities Act, promptly provide to the Trustee and
shall, upon written request, provide to any holder, beneficial owner or prospective purchaser of
such Notes, the information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act to facilitate the resale of such Notes pursuant to Rule 144A under the Securities
Act. The Company shall take such further action as any holder or beneficial owner of such Notes
may reasonably request to the extent required from time to time to enable such holder or beneficial
holder to sell such Notes in accordance with Rule 144A under the Securities Act, as such rule may
be amended from time to time.



     (b) The Company will deliver to the Trustee within fifteen (15) days after the filing of the
same with the Commission, copies of the quarterly and annual reports and of the information,
documents and other reports, if any, which the Company is required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act, and shall otherwise comply with the
requirements of Trust Indenture Act Section 314(a).



     (c) Delivery of such reports, information and documents to the Trustee is for informational
purposes only, and the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to
conclusively rely exclusively on an Officers’ Certificate).



     Section 3.07. Stay, Extension and Usury Laws. The Company covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law or other



28









 







law which
would prohibit or forgive the Company from paying all or any portion of the principal of, or
interest on, the Notes as contemplated herein, wherever enacted, now or at any time hereafter in
force, or which may affect the covenants or the performance of this Indenture; and the Company (to
the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law,
and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.



     Section 3.08. Compliance Certificate; Statements as to Defaults. The Company shall deliver to
the Trustee within 120 calendar days after the end of each Fiscal Year of the Company (beginning
with the Fiscal Year ending on January 31, 2010) an Officers’ Certificate stating whether or not
the signer thereof has knowledge of any failure by the Company to comply with all conditions and
covenants then required to be performed under this Indenture and, if so, specifying each such
failure and the nature thereof.



     In addition, the Company shall deliver to the Trustee, as soon as possible and in any event
within 30 days after the Company becomes aware of the occurrence of any Event of Default or
Default, an Officers’ Certificate setting forth the details of such Event of Default or Default,
its status and the action which the Company proposes to take with respect thereto.



     Section 3.09. Further Instruments and Acts. Upon request of the Trustee or as necessary, the
Company will execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purposes of this Indenture.



ARTICLE 4

Lists of Noteholders and Reports by the Company and the Trustee




     Section 4.01. Lists of Noteholders. The Company covenants and agrees that it will furnish or
cause to be furnished to the Trustee, semi-annually, not more than fifteen (15) days after each
March 31 and September 30 in each year beginning with March 31, 2010, and at such other times as
the Trustee may request in writing, within thirty (30) days after receipt by the Company of any
such request (or such lesser time as the Trustee may reasonably request in order to enable it to
timely provide any notice to be provided by it hereunder), a list in such form as the Trustee may
reasonably require of the names and addresses of the Noteholders as of a date not more than fifteen
(15) days (or such other date as the Trustee may reasonably request in order to so provide any such
notices) prior to the time such information is furnished, except that no such list need be
furnished so long as the Trustee is acting as Note Registrar.



     Section 4.02. Preservation and Disclosure of Lists.



     (a) The Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the Noteholders contained in the most recent list
furnished to it as provided in Section 4.01 or maintained by the Trustee in its capacity as Note



29









 







Registrar, if so acting. The Trustee may destroy any list furnished to it as provided in Section
4.01 upon receipt of a new list so furnished.



     (b) The rights of Noteholders to communicate with other Noteholders with respect to their
rights under this Indenture or under the Notes and the corresponding rights and duties of the
Trustee, shall be as provided by the Trust Indenture Act.



     (c) Every Noteholder, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and addresses of Noteholders
made pursuant to the Trust Indenture Act.



     Section 4.03. Reports by Trustee.



     (a) Within sixty (60) days after April 15 of each year commencing with the year 2010, the
Trustee shall transmit to Noteholders such reports dated as of April 15 of each year in which such
reports are made concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.



     (b) A copy of such report shall, at the time of such transmission to Noteholders, be filed by
the Trustee with each stock exchange and automated quotation system upon which the Notes are listed
and with the Company. The Company will notify the Trustee in writing within a reasonable time when
the Notes are listed on any stock exchange or automated quotation system and when any such listing
is discontinued.



     Section 4.04. Reports by Company.



     (a) The Company shall file with the Trustee and the Commission, and transmit to Noteholders,
such information, documents and other reports and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Act;
provided that any such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days
after the same is filed with the Commission.



     (b) Delivery of such reports, information and documents to the Trustee is for informational
purposes only, and the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to
conclusively rely exclusively on an Officers’ Certificate).



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ARTICLE 5

Defaults and Remedies




     Section 5.01. Events of Default. The following events shall be Events of Default with respect
to the Notes:



     (a) default in any payment of interest on any Note when due and payable and the default
continues for a period of 30 days;



     (b) default in the payment of principal of or any other amount under any Note when due and
payable on the Maturity Date, upon put exercise, upon required repurchase, upon declaration of
acceleration or otherwise;



     (c) failure by the Company to comply with its obligation to deliver cash or shares of Common
Stock, as applicable, upon a put of any Notes;



     (d) failure by the Company to comply with its obligations under Article 10;



     (e) failure by the Company to comply with its notice obligations under Section 13.01(b),
Section 13.01(c), Section 13.01(d) or
Section 14.01(b);



     (f) failure by the Company for 60 days to comply with any of its other agreements (other than
a covenant or warranty or default in whose performance or whose breach is elsewhere in this Section
specifically provided for) contained in the Notes or the Indenture after written notice of such
default from the Trustee or the holders of at least 25% in principal amount of the Notes then
outstanding has been received by the Company;



     (g) a default or defaults under any bond, debenture, note or other evidence of Debt (other
than Non-Recourse Debt) by the Company or any subsidiary of the Company or under any mortgage,
indenture or instrument under which there may be issued or by which there may be secured or
evidenced any Debt for money borrowed (other than Non-Recourse Debt) of the Company or any such
subsidiary with a principal amount then outstanding in excess of $10 million, whether such Debt
now exists or shall hereafter be created, which default or defaults shall constitute a failure to
pay any portion of the principal of such Debt when due and payable after the expiration of any
applicable grace period with respect thereto and shall have resulted in such Debt becoming or
being declared due and payable prior to the date on which it would otherwise have become due and
payable or constitutes the failure to pay any portion of the principal of such Debt when due and
payable at maturity or by acceleration;



     (h) a default or defaults under any bond, debenture, note or other evidence of Non-Recourse
Debt by the Company or any subsidiary of the Company or under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced any Non-Recourse Debt
of the Company or any such subsidiary with a principal amount then outstanding in excess of 20% of
the aggregate principal or similar amount of all the outstanding Non-Recourse Debt of the Company
and its subsidiaries, whether such Non-Recourse Debt now exists or shall hereafter be created,
which default or defaults shall constitute a failure to pay any portion of the principal of such




31









 







Non-Recourse Debt when due and payable after the expiration of any applicable grace period with
respect thereto or shall have resulted in such Non-Recourse Debt becoming or being declared due and
payable prior to the date on which it would otherwise have become due and payable;



     (i) the Company or any of its Significant Subsidiaries shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief with respect to the Company or
any of their respective Significant Subsidiaries or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of the Company or any of its Significant
Subsidiaries or any substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for the benefit of creditors, or shall
fail generally to pay its debts as they become due; or



     (j) an involuntary case or other proceeding shall be commenced against the Company or any of
its Significant Subsidiaries seeking liquidation, reorganization or other relief with respect to
the Company or any of its Significant Subsidiaries or their respective debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of the Company or any of its Significant
Subsidiaries or any substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of ninety (90) consecutive days.



     In case one or more Events of Default shall have occurred and be continuing (whatever the
reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), then, and in each and every such case
(other than an Event of Default specified in Section 5.01(i) or Section 5.01(j)
with respect to the Company), unless the principal of all of the Notes shall have already
become due and payable, either the Trustee or the holders of at least 25% in aggregate principal
amount of the Notes then outstanding determined in accordance with Section 7.04, by notice in
writing to the Company (and to the Trustee if given by Noteholders), may declare 100% of the
principal of, and accrued and unpaid interest on, all the Notes to be due and payable immediately,
and upon any such declaration the same shall become and shall be immediately due and payable,
anything in this Indenture or in the Notes contained to the contrary notwithstanding. If an Event
of Default specified in Section 5.01(i) or Section 5.01(j) occurs and is continuing with respect to
the Company, the principal of all the Notes and accrued and unpaid interest shall be immediately
due and payable. This provision, however, is subject to the conditions that if, at any time after
the principal of the Notes shall have been so declared due and payable, and before any judgment or
decree for the payment of the monies due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay
installments of accrued and unpaid interest upon all Notes and the principal of any and all Notes
that shall have become due otherwise than by acceleration (with interest on overdue installments of
accrued and unpaid interest (to the extent that payment of such interest is enforceable under



32









 







applicable law) and on such principal at the rate borne by the Notes during the period of such
Default) and amounts due to the Trustee pursuant to Section 6.06, and if (1) rescission would not
conflict with any judgment or decree of a court of competent jurisdiction and (2) any and all
Events of Defaults under this Indenture, other than the nonpayment of principal of and accrued and
unpaid interest on Notes that shall have become due solely by such acceleration, shall have been
cured or waived pursuant to Section 5.07, then and in every such case the holders of a majority in
aggregate principal amount of the Notes then outstanding, by written notice to the Company and to
the Trustee, may waive all Defaults or Events of Default with respect to the Notes and rescind and
annul such declaration and its consequences and such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture;
but no such waiver or rescission and annulment shall extend to or shall affect any subsequent
Default or Event of Default, or shall impair any right consequent thereon. The Company shall notify
the Responsible Officer of the Trustee in writing, promptly upon becoming aware thereof, of any
Event of Default by delivering to the Trustee a statement specifying such Event of Default and any
action the Company has taken, is taking or proposes to take with respect thereto.



     Notwithstanding the foregoing, the Company may, at its option, elect that the sole remedy for
an Event of Default relating to its failure to comply with the Company’s obligation to file annual
or quarterly reports in accordance with this Indenture or to comply with the requirements of
Section 314(a)(1) of the Trust Indenture Act (a “Filing Failure”) shall for the first one hundred
eighty (180) days after the occurrence of such Event of Default (the “Extension Period”) consist
exclusively of the right to receive a fee (the “Extension Fee”) accruing at the rate of 1.00% per
annum of the aggregate principal amount of Notes that are then outstanding, on the terms and in the
manner described below. Any Extension Fee shall be paid on the same times and in the same manner as
interest shall be paid in accordance with this Indenture. The Extension Fee shall accrue on the
Notes that are then outstanding from the first day of the Event of Default to, but excluding, the
earlier of (i) the date on which the Company has made the filings initially giving rise to the
Filing Failure and (ii) the date that is one hundred eighty (180) days after the occurrence of the
Event of Default. The Company must give written
notice of its election to pay the Extension Fee prior to the occurrence of the Event of
Default. On the 181st day after such Event of Default (if the Event of Default relating to the
reporting obligations is not cured or waived prior to such 181st day), the Notes shall be subject
to acceleration as provided in this Section 5.01. This right shall not affect the rights of holders
of Notes if any other Event of Default occurs under the Indenture. If the Company does not pay the
Extension Fee on a timely basis in accordance with this Section 5.01, the Notes shall be subject to
acceleration as provided in this Section 5.01. Notwithstanding the foregoing, if an additional
Filing Failure occurs during an Extension Period, the Notes will be subject to acceleration for
such additional Filing Failure at the end of the Extension Period for the first Filing Failure to
the extent it has not been remedied before the end of the first Extension Period, provided, however
that to the extent the Company has agreed to pay an additional Extension Fee in accordance with the
terms of this Section 5.01 as to such additional Filing Failure, and the first Filing Failure has
been remedied before the end of the first Extension Period, the Notes will not be subject to
acceleration until the end of the additional Extension Period as to such additional Filing Failure.



33









 







For the avoidance of doubt, notwithstanding the occurrence of multiple concurrent Filing Failures,
the Extension Fee shall not exceed the rate provided for in the first sentence of this paragraph.



     In case the Trustee shall have proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned because of such waiver or rescission and
annulment or for any other reason or shall have been determined adversely to the Trustee, then and
in every such case the Company, the Noteholders, and the Trustee shall, subject to any
determination in such proceeding, be restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the Company, the Noteholders, and the Trustee
shall continue as though no such proceeding had been instituted.



     Section 5.02. Payments of Notes on Default; Suit Therefor. In the event that the Trustee or
the holders of not less than 25% in aggregate principal amount of the Notes then outstanding
hereunder have declared the principal of and accrued and unpaid interest on, the Notes, to be due
and payable immediately in accordance with Section 5.01, and the Company shall have failed
forthwith to pay such amounts, the Trustee, in its own name and as trustee of an express trust,
after being furnished suitable indemnity pursuant to Section 6.01, shall be entitled and empowered
to institute any actions or proceedings at law or in equity for the collection of the sums so due
and unpaid (including such further amounts as shall be sufficient to cover the reasonable costs and
expenses of collection, including reasonable compensation to the Trustee, its agents, attorneys and
counsel, and any expenses or liabilities incurred by the Trustee hereunder other than through its
negligence or bad faith), and may prosecute any such action or proceeding to judgment or final
degree, and may enforce any such judgment or final decree against the Company and collect in the
manner provided by law out of the property of the Company wherever situated the monies adjudged or
decreed to be payable.



     In case there shall be pending proceedings for the bankruptcy or for the reorganization of the
Company under Title 11 of the United States Code, or any other applicable law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar
official shall have been appointed for or taken possession of the Company, the property of the
Company, or in the event of any other judicial proceedings relative to the Company, upon the
Notes, or to the creditors or property of the Company, the Trustee, irrespective of whether
the principal of the Notes shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the
provisions of this Section 5.02, shall be entitled and empowered, by intervention in such
proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal and
accrued and unpaid interest and other amounts payable in respect of the Notes, and, in case of any
judicial proceedings, to file such proofs of claim and other papers or documents and to take such
other actions as it may deem necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Noteholders allowed in such judicial proceedings
relative to the Company on the Notes, its creditors, or its property, and to collect and receive
any monies or other property payable or deliverable on any such claims, and to distribute the same
after the deduction of any amounts due the Trustee under Section 6.06; and any



34









 







receiver, assignee
or trustee in bankruptcy or reorganization, liquidator, custodian or similar official is hereby
authorized by each of the Noteholders to make such payments to the Trustee, as administrative
expenses, and, in the event that the Trustee shall consent to the making of such payments directly
to the Noteholders, to pay to the Trustee any amount due it for reasonable compensation, expenses,
advances and disbursements, including agents and counsel fees and including any other amounts due
to the Trustee under Section 6.06 hereof, incurred by it up to the date of such distribution. To
the extent that such payment of reasonable compensation, expenses, advances and disbursements out
of the estate in any such proceedings shall be denied for any reason, payment of the same shall be
secured by a lien on, and shall be paid out of, any and all distributions, dividends, monies,
securities and other property which the holders of the Notes may be entitled to receive in such
proceedings, whether in liquidation or under any plan of reorganization or arrangement or
otherwise.



     Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Noteholder any plan of reorganization, arrangement, adjustment
or composition affecting the Noteholder or the rights of any Noteholder thereof, or to authorize
the Trustee to vote in respect of the claim of any Noteholder in any such proceeding.



     All rights of action and of asserting claims under this Indenture, or under any of the Notes,
may be enforced by the Trustee without the possession of any of the Notes, or the production
thereof at any trial or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable
benefit of the holders of the Notes.



     In any proceedings brought by the Trustee (and in any proceedings involving the interpretation
of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held
to represent all the holders of the Notes, and it shall not be necessary to make any holders of the
Notes parties to any such proceedings.



     Section 5.03. Application of Monies Collected by Trustee. Any monies collected by the Trustee
pursuant to this Article 5 with respect to the Notes shall be
applied in the order following, at the date or dates fixed by the Trustee for the distribution
of such monies, upon presentation of the several Notes, and stamping thereon the payment, if only
partially paid, and upon surrender thereof, if fully paid:



     First, to the payment of all amounts due the Trustee under Section 6.06;



     Second, in case the principal of and other amounts under the outstanding Notes shall not have
become due and be unpaid, to the payment of interest on the Notes in default in the order of the
maturity of the installments of such interest, with interest (to the extent that such interest has
been collected by the Trustee) upon the overdue installments of interest at the rate borne by the
Notes, such payments to be made ratably to the Persons entitled thereto;



35









 





     Third, in case the principal of and other amounts under the outstanding Notes shall have
become due, by declaration or otherwise, and be unpaid to the payment of the whole amount
(including, if applicable, payments in respect of the Put Value Obligation) then owing and unpaid
upon the Notes for principal, such other amounts and interest, with interest on the overdue
principal, such other amounts (to the extent that such interest has been collected by the Trustee),
and upon overdue installments of interest at the rate borne by the Notes, and in case such monies
shall be insufficient to pay in full the whole amounts so due and unpaid upon the Notes, then to
the payment of such principal, such other amounts and interest without preference or priority of
principal or such other amounts over interest, or of interest over principal, such other amounts or
of any installment of interest over any other installment of interest, or of any Note over any
other Note, ratably to the aggregate of such principal, such other amounts and accrued and unpaid
interest; and



     Fourth, to the payment of the remainder, if any, to the Company or as any court of competent
jurisdiction may direct.



     Section 5.04. Proceedings by Noteholders. No holder of any Note shall have any right by
virtue of or by availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture, or for the
appointment of a receiver, trustee, liquidator, custodian or other similar official, or for any
other remedy hereunder, unless such holder previously shall have given to the Trustee written
notice of an Event of Default and of the continuance thereof, as hereinbefore provided, and unless
also the holders of not less than 25% in aggregate principal amount of the Notes then outstanding
shall have made written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such security or indemnity
reasonably satisfactory to it against any loss, liability or expense to be incurred therein or
thereby, and the Trustee for sixty (60) days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or proceeding and no
direction that, in the opinion of the Trustee, is inconsistent with such written request shall have
been given to the Trustee by the holders of a majority in principal amount of the Notes outstanding
pursuant to Section 5.07; it being understood and intended, and being expressly covenanted by the
taker and holder of every Note with every other taker and holder and the Trustee, that no one or
more Noteholders shall have any right in any manner whatever by virtue of or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any other Noteholder, or
to
obtain or seek to obtain priority over or preference to any other such holder, or to enforce
any right under this Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Noteholders (except as otherwise provided herein). For the protection and
enforcement of this Section 5.04, each and every Noteholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.



     Notwithstanding any other provision of this Indenture and any provision of any Note, the right
of any Noteholder to receive payment of the principal of, other amounts under and accrued and
unpaid interest on such Note, on or after the respective due dates expressed or provided in such
Note or in this Indenture, or to institute suit for the enforcement of any such payment on or



36









 







after
such respective dates against the Company shall not be impaired or affected without the consent of
such Noteholder.



     Anything in this Indenture or the Notes to the contrary notwithstanding, the holder of any
Note, without the consent of either the Trustee or the holder of any other Note, in its own behalf
and for his own benefit, may enforce, and may institute and maintain any proceeding suitable to
enforce, its rights of put exercise as provided herein.



     Section 5.05. Proceedings by Trustee. In case of an Event of Default the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either
by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.



     Section 5.06. Remedies Cumulative and Continuing. Except as provided in the last paragraph of
Section 2.07, all powers and remedies given by this Article 5 to the Trustee or to the Noteholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of
any other powers and remedies available to the Trustee or the holders of the Notes, by judicial
proceedings or otherwise, to enforce the performance or observance of the covenants and agreements
contained in this Indenture, and no delay or omission of the Trustee or of any holder of any of the
Notes to exercise any right or power accruing upon any Default or Event of Default shall impair any
such right or power, or shall be construed to be a waiver of any such Default or any acquiescence
therein; and, subject to the provisions of Section 5.04, every power and remedy given by this
Article 5 or by law to the Trustee or to the Noteholders may be exercised from time to time, and as
often as shall be deemed expedient by the Trustee or by the Noteholders.



     Section 5.07. Direction of Proceedings and Waiver of Defaults by Majority of Noteholders. The
holders of a majority in aggregate principal amount of the Notes at the time outstanding determined
in accordance with Section 7.04 shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee or exercising any trust or power
conferred on
the Trustee with respect to Notes; provided, however, that (a) such direction shall not be in
conflict with any rule of law or with this Indenture, and (b) the Trustee may take any other action
deemed proper by the Trustee that is not inconsistent with such direction. The Trustee may refuse
to follow any direction that it determines is unduly prejudicial to the rights of any other holder
or that would involve the Trustee in personal liability. The holders of a majority in aggregate
principal amount of the Notes at the time outstanding determined in accordance with Section 7.04
may, on behalf of the holders of all of the Notes waive any past Default or Event of Default
hereunder and its consequences except (i) a Default in the payment of accrued and unpaid interest
on, or the principal of or other amounts under, the Notes when due which has not been cured
pursuant to the provisions of Section 5.01, (ii) a failure by the Company to deliver cash and, if
applicable, shares of Common Stock (and cash in lieu of fractional shares) with respect to any
Notes put to the Company, or (iii) a default in



37









 







respect of a covenant or provision hereof which
under Article 9 cannot be modified or amended without the consent of each holder of an outstanding
Note affected thereby. Upon any such waiver the Company, the Trustee and the holders of the Notes
shall be restored to their former positions and rights hereunder, but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right consequent thereon.
Whenever any Default or Event of Default hereunder shall have been waived as permitted by this
Section 5.07, said Default or Event of Default shall for all purposes of the Notes and this
Indenture be deemed to have been cured and to be not continuing; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right consequent thereon.



     Section 5.08. Notice of Defaults. The Trustee shall, within ninety (90) days after the
occurrence and continuance of a Default of which a Responsible Officer has actual knowledge, mail
to all Noteholders as the names and addresses of such holders appear upon the Note Register, notice
of all Defaults known to a Responsible Officer, unless such Defaults shall have been cured or
waived before the giving of such notice; and provided that, except in the case of a Default in the
payment of the principal of, accrued and unpaid interest on or other amounts due under any of the
Notes, then in any such event the Trustee shall be protected in withholding such notice if and so
long as a committee of trust officers of the Trustee in good faith determine that the withholding
of such notice is in the interests of the Noteholders.



     Section 5.09. Undertaking to Pay Costs. All parties to this Indenture agree, and each holder
of any Note by its acceptance thereof shall be deemed to have agreed, that any court may, in its
discretion, require, in any suit for the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by
any party litigant in such suit of an undertaking to pay the costs of such suit and that such court
may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses,
against any party litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; provided that the provisions of this Section 5.09
(to the extent permitted by law) shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Noteholder, or group of Noteholders, holding in the aggregate more than 10% in
principal amount of the Notes at the time outstanding determined in accordance with Section 7.04,
or to any suit instituted by any Noteholder for the enforcement of the payment of
the principal of, other amounts under and accrued and unpaid interest on any Note on or after
the due date expressed in such Note or to any suit for the enforcement of the right to put any Note
to the Company in accordance with the provisions of Article 13 or Article 14.



ARTICLE 6

Concerning the Trustee




     Section 6.01. Duties and Responsibilities of Trustee. The Trustee, except during an Event of
Default, undertakes to perform such duties and only such duties as are specifically set forth in
this Indenture. In case an Event of Default has occurred (which has not been cured or waived) the
Trustee shall exercise such of the rights and powers vested in it by this Indenture,



38









 







and use the
same degree of care and skill in their exercise, as a prudent person would exercise or use under
the circumstances in the conduct of such person’s own affairs; provided that if an Event of Default
occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or
powers under this Indenture at the request or direction of any of the holders unless such holders
have offered to the Trustee indemnity or security reasonably satisfactory to it against loss,
liability or expense.



     No provision of this Indenture shall be construed to relieve the Trustee from liability for
its own grossly negligent action, its own grossly negligent failure to act or its own willful
misconduct, except that:



     (a) prior to the occurrence of an Event of Default and after the curing or waiving of all
Events of Default which may have occurred:




     (i) the duties and obligations of the Trustee shall be determined solely by the express
provisions of this Indenture and, after it has been qualified thereunder, the Trust
Indenture Act, and the Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture and the Trust Indenture Act against the
Trustee; and




     (ii) in the absence of bad faith and willful misconduct on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but, in the case of any such certificates
or opinions which by any provisions hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein);



     (b) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer or Officers of the Trustee, unless it shall be proved that the Trustee was
grossly negligent in ascertaining the pertinent facts;



     (c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of the holders of not less than a majority in
principal amount of the Notes at the time outstanding determined as provided in Section 7.04
relating to the time, method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;



     (d) whether or not therein provided, every provision of this Indenture relating to the conduct
or affecting the liability of, or affording protection to, the Trustee shall be subject to the
provisions of this Section;



39









 





     (e) the Trustee shall not be liable in respect of any payment (as to the correctness of
amount, entitlement to receive or any other matters relating to payment) or notice effected by the
Company or any Paying Agent or any records maintained by any co-registrar with respect to the
Notes;



     (f) if any party fails to deliver a notice relating to an event the fact of which, pursuant to
this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on its
failure to receive such notice as reason to act as if no such event occurred, unless such
Responsible Officer of the Trustee had actual knowledge of such event;



     (g) in the absence of written investment direction from the Company, all cash received by the
Trustee shall be placed in a non-interest bearing trust account. In no event shall the Trustee be
liable for the selection of investments or for investment losses incurred thereon or for losses
incurred as a result of the liquidation of any such investment prior to its stated maturity or the
failure of the party directing such investments prior to its stated maturity or the failure of the
party directing such investment to provide timely written investment direction, and the Trustee
shall have no obligation to invest or reinvest any amounts held hereunder in the absence of such
written investment direction from the Company; and



     (h) in the event that the Trustee is also acting as Custodian, Note Registrar, Paying Agent,
Put Exercise Agent or transfer agent hereunder, the rights and protections afforded to the Trustee
pursuant to this Article 6 shall also be afforded to such Custodian, Note Registrar, Paying Agent,
Put Exercise Agent or transfer agent.



     None of the provisions contained in this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers.



     Section 6.02. Reliance on Documents, Opinions, Etc:



     Except as otherwise provided in Section 6.01:



     (a) the Trustee may conclusively rely and shall be fully protected in acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order,
bond, note, coupon or other paper or document believed by it in good faith to be genuine and to
have been signed or presented by the proper party or parties;



     (b) any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be
herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to
the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company;



     (c) the Trustee may consult with counsel of its selection and require an Opinion of Counsel
and any advice of such counsel or Opinion of Counsel shall be full and complete



40









 







authorization and
protection in respect of any action taken or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;



     (d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request, order or direction of any of the Noteholders pursuant to the
provisions of this Indenture, unless such Noteholders shall have offered to the Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred
therein or thereby;



     (e) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent or attorney at the
expense of the Company and shall incur no liability of any kind by reason of such inquiry or
investigation;



     (f) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, custodians, nominees or attorneys and the
Trustee shall not be responsible for any misconduct or negligence on the part of any agent,
custodian, nominee or attorney appointed by it with due care hereunder;



     (g) the permissive rights of the Trustee enumerated herein shall not be construed as duties;



     (h) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein, upon Officers’
Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such Certificates or Opinions which by any provisions
hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other
facts stated therein);



     (i) the Trustee may request that the Company deliver an Officers’ Certificate setting forth
the names of individuals and/or titles of officers’ authorized at such time to take specified
actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person
authorized to sign Officers’ Certificates, including any person specified as so authorized in any
such certificate previously delivered and not superseded;



     (j) whenever in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, conclusively rely upon an Officers’ Certificate;



41









 





     (k) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by
it in good faith and reasonably believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture; and



     (l) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder.



     In no event shall the Trustee be liable for any consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action other than through the
Trustee’s willful misconduct or gross negligence. The Trustee shall not be charged with knowledge
of any Default or Event of Default with respect to the Notes, unless either (1) a Responsible
Officer shall have actual knowledge of such Default or Event of Default or (2) written notice of
such Default or Event of Default shall have been given to the Trustee by the Company or by any
holder of the Notes at the Corporate Trust Office of the Trustee, and such notice references the
Notes and this Indenture; and the permissive rights of the Trustee enumerated herein shall not be
construed as duties.



     Section 6.03. No Responsibility for Recitals, Etc. The recitals contained herein and in the
Notes (except in the Trustee’s certificate of authentication) shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for the correctness of the same. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or of the Notes. The
Trustee shall not be accountable for the use or application by the Company of any Notes or the
proceeds of any Notes authenticated and delivered by the Trustee in conformity with the provisions
of this Indenture. The Trustee shall not be responsible or liable for any loss suffered in
connection with any investment of funds made by it in accordance with this Indenture or at the
direction of the Company. Except for information provided by the Trustee concerning
the Trustee, the Trustee shall have no responsibility for any information in any offering
memorandum, prospectus or other disclosure material distributed with respect to the Notes.



     Section 6.04. Trustee, Paying Agents, Put Exercise Agents or Registrar May Own Notes. The
Trustee, any Paying Agent, any Put Exercise Agent or Note Registrar, in its individual or any other
capacity, may become the owner or pledgee of Notes with the same rights it would have if it were
not Trustee, Paying Agent, Put Exercise Agent or Note Registrar.



     Section 6.05. Monies to be Held in Trust. Subject to the provisions of Section 11.04, all
monies received by the Trustee shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received. Money held by the Trustee in trust hereunder need
not be segregated from other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any money received by it hereunder except as may be agreed from time
to time by the Company and the Trustee.



42









 





     Section 6.06. Compensation and Expenses of Trustee. The Company covenants and agrees to pay
to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation for
all services rendered by it hereunder in any capacity (which shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust) as mutually agreed to in
writing between the Trustee and the Company, and the Company will pay or reimburse the Trustee upon
its request for all reasonable expenses, disbursements and advances reasonably incurred or made by
the Trustee in accordance with any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel and of all persons not
regularly in its employ) except any such expense, disbursement or advance as shall have been
determined to have been caused by its own gross negligence, willful misconduct or bad faith. The
Company also covenants to indemnify the Trustee in any capacity under this Indenture and any other
document or transaction entered into in connection herewith and its agents and any authenticating
agent for, and to hold them harmless against, any loss, liability, claim, damage, expense or taxes
incurred without gross negligence, willful misconduct or bad faith on the part of the Trustee, its
officers, directors, agents or employees, or such agent or authenticating agent, as the case may
be, and arising out of or in connection with the acceptance or administration of this trust or in
any other capacity hereunder, including the costs and expenses of defending themselves against any
claim of liability in the premises. The obligations of the Company under this Section 6.06 to
compensate or indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements
and advances shall be secured by a lien prior to that of the Notes upon all property and funds held
or collected by the Trustee as such, except, subject to the effect of Section 5.03, funds held in
trust herewith for the benefit of the holders of particular Notes prior to the date of the accrual
of such unpaid compensation or identifiable claim. The Trustee’s right to receive payment of any
amounts due under this Section 6.06 shall not be subordinate to any other liability or Debt of the
Company. The obligation of the Company under this Section 6.06 shall survive the satisfaction and
discharge of this Indenture and the earlier resignation or removal or the Trustee. The Company need
not pay for any settlement made without its consent, which consent shall not be
unreasonably withheld. The indemnification provided in this Section 6.06 shall extend to the
officers, directors, agents and employees of the Trustee.



     When the Trustee and its agents and any authenticating agent incur expenses or render services
after an Event of Default specified in Section 5.01(i) or Section 5.01(j) with respect to the
Company occurs, the expenses and the compensation for the services are intended to constitute
expenses of administration under any bankruptcy, insolvency or similar laws.



     Section 6.07. Officers’ Certificate as Evidence. Except as otherwise provided in Section
8.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or omitting any
action hereunder, such matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of gross negligence, willful misconduct, recklessness and bad faith
on the part of the Trustee, be deemed to be conclusively proved and established by an Officers’
Certificate delivered to the Trustee, and such Officers’ Certificate, in the absence of gross
negligence, willful misconduct, recklessness and bad faith on the part of the Trustee, shall



43









 







be
full warrant to the Trustee for any action taken or omitted by it under the provisions of this
Indenture upon the faith thereof.



     Section 6.08. Conflicting Interests of Trustee. If the Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture.



     Section 6.09. Eligibility of Trustee. There shall at all times be a Trustee hereunder which
shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If such Person publishes reports of condition
at least annually, pursuant to law or to the requirements of any supervising or examining
authority, then for the purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.



     Section 6.10. Resignation or Removal of Trustee.



     (a) The Trustee may at any time resign by giving written notice of such resignation to the
Company and by mailing, at the expense of the Company, notice thereof to the Noteholders at their
addresses as they shall appear on the Note Register. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor trustee shall have been so appointed
and have accepted appointment sixty (60) days after the mailing of
such notice of resignation to the Noteholders, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee, or any Noteholder who has been a
bona fide holder of a Note or Notes for at least six months may, subject to the provisions of
Section 5.09, on behalf of itself and all others similarly situated, petition any such court for
the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a successor trustee.



     (b) In case at any time any of the following shall occur:




     (i) the Trustee shall fail to comply with Section 6.08 within a reasonable time after
written request therefor by the Company or by any Noteholder who has been a bona fide holder
of a Note or Notes for at least six (6) months, or




     (ii) the Trustee shall cease to be eligible in accordance with the provisions of
Section 6.09 and shall fail to resign after written request therefor by the Company or by
any such Noteholder, or



44









 






     (iii) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,



     then, in any such case, the Company may by a Board Resolution remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee, or, subject to the provisions of Section 5.09, any Noteholder who has been a
bona fide holder of a Note or Notes for at least six (6) months may, on behalf of itself and all
others similarly situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor trustee. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.



     (c) The holders of a majority in aggregate principal amount of the Notes at the time
outstanding, as determined in accordance with Section 7.04, may at any time remove the Trustee and
nominate a successor trustee which shall be deemed appointed as successor trustee unless within ten
(10) days after notice to the Company of such nomination the Company objects thereto, in which case
the Trustee so removed or any Noteholder, upon the terms and conditions and otherwise as in Section
6.10(a) provided, may petition any court of competent jurisdiction for an appointment of a
successor trustee.



     (d) Any resignation or removal of the Trustee and appointment of a successor trustee pursuant
to any of the provisions of this Section 6.10 shall become effective upon acceptance of appointment
by the successor trustee as provided in Section 6.11.



     Section 6.11. Acceptance by Successor Trustee. Any successor trustee appointed as provided in
Section 6.10 shall execute, acknowledge and deliver to the Company
and to its predecessor trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with like effect as if
originally named as trustee herein; but, nevertheless, on the written request of the Company or of
the successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due it
pursuant to the provisions of Section 6.06, execute and deliver an instrument transferring to such
successor trustee all the rights and powers of the trustee so ceasing to act. Upon request of any
such successor trustee, the Company shall execute any and all instruments in writing for more fully
and certainly vesting in and confirming to such successor trustee all such rights and powers. Any
trustee ceasing to act shall, nevertheless, retain a lien upon all property and funds held or
collected by such trustee as such, except for funds held in trust for the benefit of holders of
particular Notes, to secure any amounts then due it pursuant to the provisions of Section 6.06.



45









 





     No successor trustee shall accept appointment as provided in this Section 6.11 unless at the
time of such acceptance such successor trustee shall be qualified under the provisions of Section
6.08 and be eligible under the provisions of Section 6.09.



     Upon acceptance of appointment by a successor trustee as provided in this Section 6.11, each
of the Company and the successor trustee, at the written direction and at the expense of the
Company shall mail or cause to be mailed notice of the succession of such trustee hereunder to the
Noteholders at their addresses as they shall appear on the Note Register. If the Company fails to
mail such notice within ten (10) days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the Company.



     Section 6.12. Succession by Merger, Etc. Any corporation or other entity into which the
Trustee may be merged or converted or with which it may be consolidated, or any corporation or
other entity resulting from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation or other entity succeeding to all or substantially all of the corporate
trust business of the Trustee (including the administration of this Indenture), shall be the
successor to the Trustee hereunder without the execution or filing of any paper or any further act
on the part of any of the parties hereto, provided that in the case of any corporation or other
entity succeeding to all or substantially all of the corporate trust business of the Trustee such
corporation or other entity shall be qualified under the provisions of Section 6.08 and eligible
under the provisions of Section 6.09.



     In case at the time such successor to the Trustee shall succeed to the trusts created by this
Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to
the Trustee may adopt the certificate of authentication of any predecessor trustee or
authenticating agent appointed by such predecessor trustee, and deliver such Notes so
authenticated, and in case at that time any of the Notes shall not have been authenticated, any
successor to the Trustee or an authenticating agent appointed by such successor trustee may
authenticate such Notes either in the name of any predecessor trustee hereunder or in the name of
the successor trustee; and in all such cases such certificates shall have the full force which it
is anywhere in the Notes or in this Indenture provided that the certificate of the Trustee shall
have; provided, however, that the right to adopt the certificate of authentication of any
predecessor
Trustee or to authenticate Notes in the name of any predecessor Trustee shall apply only to
its successor or successors by merger, conversion or consolidation.



     Section 6.13. Limitation on Rights of Trustee as Creditor. If and when the Trustee shall be
or become a creditor of the Company, the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of the claims against the Company.



     Section 6.14. Trustee’s Application for Instructions from the Company. Any application by the
Trustee for written instructions from the Company (other than with regard to any action proposed to
be taken or omitted to be taken by the Trustee that affects the rights of the holders of the Notes
under this Indenture) may, at the option of the Trustee, set forth in writing any action proposed
to be taken or omitted by the Trustee under this Indenture and the date on and/or after which such
action shall be taken or such omission shall be effective. The Trustee shall not be



46









 







liable for any
action taken by, or omission of, the Trustee in accordance with a proposal included in such
application on or after the date specified in such application (which date shall not be less than
three (3) Business Days after the date any officer of the Company actually receives such
application, unless any such officer shall have consented in writing to any earlier date), unless,
prior to taking any such action (or the effective date in the case of any omission), the Trustee
shall have received written instructions in response to such proposal specifying the action to be
taken or omitted.



ARTICLE 7

Concerning the Noteholders




     Section 7.01. Action By Noteholders. Whenever in this Indenture it is provided that the
holders of a specified percentage in aggregate principal amount of the Notes may take any action
(including the making of any demand or request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that at the time of taking any such action, the holders of
such specified percentage have joined therein may be evidenced (a) by any instrument or any number
of instruments of similar tenor executed by Noteholders in person or by agent or proxy appointed in
writing, or (b) by the record of the Noteholders voting in favor thereof at any meeting of
Noteholders duly called and held in accordance with the provisions of Article 8, or (c) by a
combination of such instrument or instruments and any such record of such a meeting of Noteholders
and, except as herein otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Proof of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section. Whenever the Company or the Trustee
solicits the taking of any action by the holders of the Notes, the Company or the Trustee may fix,
but shall not be required to, in advance of such
solicitation, a date as the record date for determining Noteholders entitled to take such
action. The record date if one is selected shall be not more than fifteen (15) days prior to the
date of commencement of solicitation of such action. Any request, demand, authorization, direction,
notice consent, waiver or other action by a Holder of any Note shall bind every future Holder of
the same Note, and the holder of every Note issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done, omitted, or suffered to be done
by the Trustee or the Company in reliance thereon, whether or not notation of such action is made
upon such Note.



     Section 7.02. Proof of Execution by Noteholders. Subject to the provisions of Section 6.01,
Section 6.02 and Section 8.05, proof of the execution of any instrument by a Noteholder or his
agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations
as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Notes shall be proved by the Note Register or by a certificate of the Note Registrar.
The record of any Noteholders’ meeting shall be proved in the manner provided in Section 8.06.



47









 





     Section 7.03. Who Are Deemed Absolute Owners. The Company, the Trustee, any authenticating
agent, any Paying Agent, any Put Exercise Agent and any Note Registrar may deem the Person in whose
name such Note shall be registered upon the Note Register to be, and may treat it as, the absolute
owner of such Note (whether or not such Note shall be overdue and notwithstanding any notation of
ownership or other writing thereon made by any Person other than the Company or any Note Registrar)
for the purpose of receiving payment of or on account of the principal of, other amounts under and
accrued and unpaid interest on such Note, for put exercise of such Note and for all other purposes;
and neither the Company nor the Trustee nor any Paying Agent nor any Put Exercise Agent nor any
Note Registrar shall be affected by any notice to the contrary. All such payments so made to any
holder for the time being, or upon its order, shall be valid, and, to the extent of the sum or sums
so paid, effectual to satisfy and discharge the liability for monies payable upon any such Note.
Notwithstanding anything to the contrary in this Indenture or the Notes following an Event of
Default, any holder of a beneficial interest in a Global Note may directly enforce against the
Company, without the consent, solicitation, proxy, authorization or any other action of the
Depositary or any other Person, such holder’s right to exchange such beneficial interest for a Note
in certificated form in accordance with the provisions of this Indenture.



     Section 7.04. Company-owned Notes Disregarded. In determining whether the holders of the
requisite aggregate principal amount of Notes have concurred in any direction, consent, waiver or
other action under this Indenture, Notes that are owned by the Company or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common control with the Company
shall be disregarded and deemed not to be outstanding for the purpose of any such determination;
provided that for the purposes of determining whether the Trustee shall be protected in relying on
any such direction, consent, waiver or other action only Notes that a Responsible Officer knows are
so owned shall be so disregarded. Notes so owned that have been pledged in good faith may be
regarded as outstanding for the purposes of this Section

7.04 if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right to
so act with respect to such Notes and that the pledgee is not the Company, or a Person directly or
indirectly controlling or controlled by or under direct or indirect common control with the
Company. In the case of a dispute as to such right, any decision by the Trustee taken upon the
advice of counsel shall be full protection to the Trustee. Upon request of the Trustee, the Company
shall furnish to the Trustee promptly an Officers’ Certificate listing and identifying all Notes,
if any, known by the Company to be owned or held by or for the account of any of the above
described Persons; and, subject to Section 6.01, the Trustee shall be entitled to accept such
Officers’ Certificate as conclusive evidence of the facts therein set forth and of the fact that
all Notes not listed therein are outstanding for the purpose of any such determination.



     Section 7.05. Revocation of Consents; Future Holders Bound. At any time prior to (but not
after) the evidencing to the Trustee, as provided in Section 7.01, of the taking of any action by
the holders of the percentage in aggregate principal amount of the Notes specified in this
Indenture in connection with such action, any holder of a Note that is shown by the evidence to be
included in the Notes the holders of which have consented to such action may, by filing written
notice with the Trustee at its Corporate Trust Office and upon proof of holding as provided in
Section 7.02, revoke such action so far as concerns such Note. Except as aforesaid,



48









 







any such action
taken by the holder of any Note shall be conclusive and binding upon such holder and upon all
future holders and owners of such Note and of any Notes issued in exchange or substitution therefor
or upon registration of transfer, irrespective of whether any notation in regard thereto is made
upon such Note or any Note issued in exchange or substitution therefor or upon registration of
transfer thereof.



ARTICLE 8

Noteholders’ Meetings




     Section 8.01. Purpose of Meetings. A meeting of Noteholders may be called at any time and
from time to time pursuant to the provisions of this Article 8 for any of the following purposes:



     (a) to give any notice to the Company or to the Trustee or to give any directions to the
Trustee permitted under this Indenture, or to consent to the waiving of any Default or Event of
Default hereunder and its consequences, or to take any other action authorized to be taken by
Noteholders pursuant to any of the provisions of Article 5;



     (b) to remove the Trustee and nominate a successor trustee pursuant to the provisions of
Article 6;



     (c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to
the provisions of Section 9.02; or



     (d) to take any other action authorized to be taken by or on behalf of the holders of any
specified aggregate principal amount of the Notes under any other provision of this Indenture or
under applicable law.



     Section 8.02. Call of Meetings by Trustee. The Trustee may at any time call a meeting of
Noteholders to take any action specified in Section 8.01, to be held at such time and at such place
as the Trustee shall determine. Notice of every meeting of the Noteholders, setting forth the time
and the place of such meeting and in general terms the action proposed to be taken at such meeting
and the establishment of any record date pursuant to Section 7.01, shall be mailed to holders of
such Notes at their addresses as they shall appear on the Note Register. Such notice shall also be
mailed to the Company. Such notices shall be mailed not less than twenty (20) nor more than ninety
(90) days prior to the date fixed for the meeting.



     Any meeting of Noteholders shall be valid without notice if the holders of all Notes then
outstanding are present in person or by proxy or if notice is waived before or after the meeting by
the holders of all Notes outstanding, and if the Company and the Trustee are either present by duly
authorized representatives or have, before or after the meeting, waived notice.



     Section 8.03. Call of Meetings by Company or Noteholders. In case at any time the Company,
pursuant to a resolution of its Board of Directors, or the holders of at least 10% in



49









 







aggregate
principal amount of the Notes then outstanding, shall have requested the Trustee to call a meeting
of Noteholders, by written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed the notice of such meeting within
twenty (20) days after receipt of such request, then the Company or such Noteholders may determine
the time and the place for such meeting and may call such meeting to take any action authorized in
Section 8.01, by mailing notice thereof as provided in Section 8.02.



     Section 8.04. Qualifications for Voting. To be entitled to vote at any meeting of Noteholders
a Person shall (a) be a holder of one or more Notes on the record date pertaining to such meeting
or (b) be a Person appointed by an instrument in writing as proxy by a holder of one or more Notes.
The only Persons who shall be entitled to be present or to speak at any meeting of Noteholders
shall be the Persons entitled to vote at such meeting and their counsel and any representatives of
the Trustee and its counsel and any representatives of the Company and its counsel.



     Section 8.05. Regulations. Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any meeting of
Noteholders, in regard to proof of the holding of Notes and of the appointment of proxies, and in
regard to the appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other matters concerning
the conduct of the meeting as it shall think fit.



     The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the Company or by Noteholders as provided in Section
8.03, in which case the Company or the Noteholders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the holders of a majority in principal amount of the Notes
represented at the meeting and entitled to vote at the meeting.



     Subject to the provisions of Section 7.04, at any meeting of Noteholders each Noteholder or
proxyholder shall be entitled to one vote for each $1,000 principal amount of Notes held or
represented by it; provided, however, that no vote shall be cast or counted at any meeting in
respect of any Note challenged as not outstanding and ruled by the chairman of the meeting to be
not outstanding. The chairman of the meeting shall have no right to vote other than by virtue of
Notes held by it or instruments in writing as aforesaid duly designating it as the proxy to vote on
behalf of other Noteholders. Any meeting of Noteholders duly called pursuant to the provisions of
Section 8.02 or Section 8.03 may be adjourned from time to time by the holders of a majority of the
aggregate principal amount of Notes represented at the meeting, whether or not constituting a
quorum, and the meeting may be held as so adjourned without further notice.



     Section 8.06. Voting. The vote upon any resolution submitted to any meeting of Noteholders
shall be by written ballot on which shall be subscribed the signatures of the Noteholders or of
their representatives by proxy and the principal amount of the Notes held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of



50









 







votes who shall count all
votes cast at the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of Noteholders shall be prepared
by the secretary of the meeting and there shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons
having knowledge of the facts setting forth a copy of the notice of the meeting and showing that
said notice was mailed as provided in Section 8.02. The record shall show the principal amount of
the Notes voting in favor of or against any resolution. The record shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates
shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting.



     Any record so signed and verified shall be conclusive evidence of the matters therein stated.



     Section 8.07. No Delay of Rights by Meeting. Nothing contained in this Article 8 shall be
deemed or construed to authorize or permit, by reason of any call of a meeting of Noteholders or
any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in
the exercise of any right or rights conferred upon or reserved to the Trustee or to the Noteholders
under any of the provisions of this Indenture or of the Notes.



ARTICLE 9

Supplemental Indentures




     Section 9.01. Supplemental Indentures Without Consent of Noteholders. The Company, when
authorized by the resolutions of the Board of Directors, and the Trustee, at the Company’s expense,
may from time to time and at any time enter into an indenture or indentures supplemental hereto for
one or more of the following purposes:



     (a) to cure any ambiguity, omission, defect or inconsistency in this Indenture in a manner
that does not individually or in the aggregate adversely affect the rights of any Noteholder in any
respect;



     (b) to provide for the assumption by a Successor Company of the obligations of the Company
under the Indenture pursuant to Article 10;



     (c) to add guarantees with respect to the Notes;



     (d) to secure the Notes;



     (e) to add to the covenants of the Company for the benefit of the holders or surrender any
right or power conferred upon the Company;



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     (f) to make any other change that does not adversely affect the rights of any holder; or



     (g) to comply with any requirements of the Commission in connection with the qualification of
the Indenture under the Trust Indenture Act.



     Upon the written request of the Company, accompanied by a Board Resolution authorizing the
execution of such supplemental indenture, the Trustee is hereby authorized to join with the Company
in the execution of any such supplemental indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance, transfer and assignment
of any property thereunder, but the Trustee shall not be obligated to, but may in its discretion,
enter into any supplemental indenture which affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise.



     Any supplemental indenture authorized by the provisions of this Section 9.01 may be executed
by the Company and the Trustee without the consent of the holders of any of the Notes at the time
outstanding.



     Section 9.02. Supplemental Indentures With Consent of Noteholders. With the consent
(evidenced as provided in Article 7) of the holders of at least a majority in aggregate principal
amount of the Notes at the time outstanding (determined in accordance with Article 7 and including,
without limitation, consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Notes), the Company, when authorized by the resolutions of the Board of Directors, and
the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of this Indenture or
any supplemental indenture or of modifying in any manner the rights of the holders of the Notes;
provided, however, that no such supplemental indenture shall:



     (a) reduce the percentage in aggregate principal amount of Notes the holders of which must
consent to an amendment;



     (b) reduce the rate, or extend the stated time for payment, of interest on any Note;



     (c) reduce the principal of or other amount payable under, or extend the Maturity Date of, any
Note;



     (d) make any change that adversely affects the put rights of any Noteholder under Article 13
or Article 14;



     (e) reduce the Designated Event Purchase Price of any Note or amend or modify in any manner
adverse to the holders of the Notes the Company’s obligation to make such payments, whether through
an amendment or waiver of provisions in the covenants, definitions or otherwise;



     (f) change the place or currency of payment of principal or interest or other amount payable
in respect of any Note;



52









 





     (g) impair the right of any holder to receive payment of principal of and interest on or other
amount payable under such holder’s Notes on or after the due dates therefor or to institute suit
for the enforcement of any payment on or with respect to such holder’s Note;



     (h) adversely affect the ranking of the Notes as the senior unsubordinated debt of the
Company; or



     (i) make any change in the provisions of this Article 9 that require each holder’s consent or
in the waiver provisions in Section 5.01 and Section 5.07,



in each case without the consent of each holder of an outstanding Note affected.



     Upon the written request of the Company, accompanied by a copy of the Board Resolutions
authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee
of evidence of the consent of Noteholders as aforesaid, the Trustee shall join with the Company in
the execution of such supplemental indenture unless such supplemental indenture affects the
Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such supplemental
indenture.



     It shall not be necessary for the consent of the Noteholders under this Section 9.02 to
approve the particular form of any proposed supplemental indenture, but it shall be sufficient if
such consent shall approve the substance thereof. After an amendment under the Indenture becomes
effective, the Company shall mail to the holders a notice briefly describing such
amendment. However, the failure to give such notice to all the holders, or any defect in the
notice, will not impair or affect the validity of the amendment.



     Section 9.03. Effect of Supplemental Indentures. Any supplemental indenture executed pursuant
to the provisions of this Article 9 shall comply with the Trust Indenture Act, as then in effect,
provided that this Section 9.03 shall not require such supplemental indenture or the Trustee to be
qualified under the Trust Indenture Act prior to the time such qualification is in fact required
under the terms of the Trust Indenture Act, nor shall it constitute any admission or acknowledgment
by any party to such supplemental indenture that any such qualification is required prior to the
time such qualification is in fact required under the terms of the Trust Indenture Act. Upon the
execution of any supplemental indenture pursuant to the provisions of this Article 9, this
Indenture shall be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitation of rights, obligations, duties and immunities under this Indenture of
the Trustee, the Company and the Noteholders shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments and all the terms and
conditions of any such supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.



     Section 9.04. Notation on Notes. Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article 9 may bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental indenture.



53









 







If the
Company or the Trustee shall so determine, new Notes so modified as to conform, in the opinion of
the Trustee and the Board of Directors, to any modification of this Indenture contained in any such
supplemental indenture may, at the Company’s expense, be prepared and executed by the Company,
authenticated by the Trustee (or an authenticating agent duly appointed by the Trustee pursuant to
Section 15.11) and delivered in exchange for the Notes then outstanding, upon surrender of such
Notes then outstanding.



     Section 9.05. Evidence of Compliance of Supplemental Indenture to be Furnished to the Trustee.
In addition to the documents required by Section 15.05, the Trustee shall receive an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant hereto complies with the requirements of this Article 9.



ARTICLE 10

Consolidation, Merger, Sale, Conveyance and Lease




     Section 10.01. Company May Consolidate, Etc. on Certain Terms. Subject to the provisions of
Section 10.02, the Company shall not consolidate with, merge with or into, or convey, transfer or
lease all or substantially all of its assets and properties to another Person, unless:



     (a) the resulting, surviving or transferee Person (the “Successor Company”) if not the Company
shall be a corporation organized and existing under the laws of the United States of America, any
State thereof or the District of Columbia and the Successor Company (if not the Company) shall
expressly assume, by supplemental indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company under the Notes, this Indenture;
and



     (b) immediately after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing.



     Upon any such consolidation, merger, conveyance, transfer or lease the resulting, surviving or
transferee (by conveyance, lease or otherwise) Person (if not the Company) shall succeed to, and
may exercise every right and power of, the Company under this Indenture.



     For purposes of this Section 10.01, the sale, lease, conveyance, assignment, transfer, or
other disposition of all or substantially all of the properties and assets of one or more
Subsidiaries of the Company, which properties and assets, if held by the Company instead of such
Subsidiaries, would constitute all or substantially all of the properties and assets of the Company
on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.



     Section 10.02. Successor Corporation to be Substituted. In case of any such consolidation,
merger, conveyance, transfer or lease and upon the assumption by the Successor Company, by
supplemental indenture, executed and delivered to the Trustee and satisfactory in



54









 







form to the
Trustee, of the due and punctual payment of the principal of and accrued and unpaid interest on all
of the Notes, the due and punctual settlement of the put exercise of the Notes and the due and
punctual performance of all of the covenants and conditions of this Indenture to be performed by
the Company, such Successor Company shall succeed to and be substituted for the Company and the
Company shall be released from those obligations, with the same effect as if it had been named
herein as the party of the first part. Such Successor Company thereupon may cause to be signed, and
may issue either in its own name or in the name of the Company any or all of the Notes issuable
hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee;
and, upon the order of such Successor Company instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall
deliver, or cause to be authenticated and delivered, any Notes which previously shall have been
signed and delivered by the officers of the Company to the Trustee for authentication, and any
Notes which such Successor Company thereafter shall cause to be signed and delivered to the Trustee
for that purpose. All the Notes so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Notes theretofore or thereafter issued in accordance with the
terms of this Indenture as though all of such Notes had been issued at the date of the execution
hereof. In the event of any such consolidation, merger, conveyance, transfer or lease, the Person
named as the
“Company” in the first paragraph of this Indenture or any successor which shall thereafter
have become such in the manner prescribed in this Article 10 may be dissolved, wound up and
liquidated at any time thereafter and such Person shall be released from its liabilities as obligor
and maker of the Notes and from its obligations under this Indenture.



     In case of any such consolidation, merger, conveyance, transfer or lease, such changes in
phraseology and form (but not in substance) may be made in the Notes thereafter to be issued as may
be appropriate.



     Section 10.03. Officers’ Certificate and Opinion of Counsel to be Given Trustee. No merger,
consolidation, sale transfer or lease shall be effective unless the Trustee shall receive an
Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation,
merger, conveyance, transfer or lease and any such assumption complies with the provisions of this
Article 10.



ARTICLE 11

Satisfaction and Discharge of Indenture




     Section 11.01. Discharge of Indenture. When (a) the Company shall deliver to the Note
Registrar for cancellation all Notes theretofore authenticated (other than any Notes that have been
destroyed, lost or stolen and in lieu of or in substitution for which other Notes shall have been
authenticated and delivered) and not theretofore canceled, or (b) all the Notes not theretofore
canceled or delivered to the Notes Registrar for cancellation shall have become due and payable,
whether on the Maturity Date or on any earlier Designated Event Purchase Date or otherwise, and the
Company shall deposit with the Trustee, in trust, cash or cash and shares of



55









 







Common Stock, if
applicable, sufficient to pay at maturity all of the Notes (other than any Notes that shall have
been mutilated, destroyed, lost or stolen and in lieu of or in substitution for which other Notes
shall have been authenticated and delivered) not theretofore canceled or delivered to the Trustee
for cancellation, including principal and accrued and unpaid interest due thereon, and if the
Company shall also pay or cause to be paid all other sums payable hereunder by the Company, then
this Indenture shall cease to be of further effect except as to (i) the right of holders to receive
payments of principal of and accrued and unpaid interest, and any unpaid Put Value Obligation on,
the Notes and the other rights, duties and obligations of Noteholders, as beneficiaries hereof with
respect to the amounts, if any, so deposited with the Trustee, (ii) the rights, obligations and
immunities of the Trustee hereunder and (iii) the obligations of the Company under Section 6.06,
and the Trustee, on written demand of the Company accompanied by an Officers’ Certificate and an
Opinion of Counsel as required by Section 15.05 and at the cost and expense of the Company, shall
execute proper instruments acknowledging satisfaction of and discharging this Indenture; the
Company, however, hereby agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred by the Trustee and to compensate the Trustee for any services
thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the
Notes.



     Section 11.02. Deposited Monies to be Held in Trust by Trustee. Subject to Section 11.04, all
monies deposited with the Trustee pursuant to Section 11.01 shall be held in trust and applied by
it to the payment, either directly or through any Paying Agent (including the Company if acting as
its own Paying Agent), to the holders of the particular Notes for the payment of which such monies
have been deposited with the Trustee, of all sums due thereon for principal and accrued and unpaid
interest.



     Section 11.03. Paying Agent to Repay Monies Held. Upon the satisfaction and discharge of this
Indenture, all monies then held by any Paying Agent of the Notes (other than the Trustee) shall,
upon written request of the Company, be repaid to it or paid to the Trustee, and thereupon such
Paying Agent shall be released from all further liability with respect to such monies.



     Section 11.04. Return of Unclaimed Monies. Subject to the requirements of applicable law, any
monies deposited with or paid to the Trustee for payment of the principal of, other amounts payable
under or accrued and unpaid interest on, Notes and not applied but remaining unclaimed by the
Noteholders for two years after the date upon which the principal of, other amounts payable under,
or accrued and unpaid interest on such Notes, as the case may be, shall have become due and
payable, shall be repaid to the Company by the Trustee on written request and all liability of the
Trustee shall thereupon cease with respect to such monies; and the holder of any of the Notes shall
thereafter look only to the Company for any payment which such holder may be entitled to collect
unless an applicable abandoned property law designates another Person. The Trustee shall, promptly
after such payment of the principal of, and any accrued and unpaid interest, on Notes, as described
in this Section 11.04 and upon written request of the Company, return to the Company any funds in
excess of the amount required for such payment.



     Section 11.05. Reinstatement. If (i) the Trustee or the Paying Agent is unable to apply any
money in accordance with Section 11.02 by reason of any order or judgment of any court or



56









 







governmental authority enjoining, restraining or otherwise prohibiting such application and (ii)
the holders of at least a majority in principal amount of the then outstanding Notes so request by
written notice to the Trustee, the Company’s obligations under this Indenture shall be revived and
reinstated as though no deposit had occurred pursuant to Section 11.01 until such time as the
Trustee or the Paying Agent is permitted to apply all such money in accordance with Section 11.02;
provided, however, that if the Company makes any payment of interest on or principal of any Note
following the reinstatement of its obligations, the Company shall be subrogated to the rights of
the Noteholders to receive such payment from the money held by the Trustee or Paying Agent.



ARTICLE 12

Immunity of Incorporators, Shareholders, Officers and Directors




     Section 12.01. Indenture and Notes Solely Corporate Obligations. No recourse for the payment
of the principal of, or accrued and unpaid interest on, any Note, or for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement
of the Company in this Indenture or in any supplemental indenture or in any Note, or because of the
creation of any debt represented thereby, shall be had against any past, present or future
incorporator, shareholder, employee, agent, officer or director or Subsidiary of the Company as
such or of any successor corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise; it being expressly understood that all such liability is
hereby expressly waived and released as a condition of, and as a consideration for, the execution
of this Indenture and the issue of the Notes.



ARTICLE 13

Exercise of Put rights; Redemptions




     Section 13.01. Put Exercise Privilege.



     (a) Subject to the conditions described in Section 13.01(b), Section 13.01(c) and Section
13.01(d) below, and upon compliance with the provisions of this Article 13, a Noteholder shall have
the right, at such holder’s option, to put to the Company all or any portion (if the portion to be
put to the Company is $1,000 principal amount or an integral multiple thereof) of such Note at any
time prior to the close of business on the Scheduled Trading Day immediately preceding the Maturity
Date at a rate (the “Put Value Rate”) of  66.7758 shares of Common Stock (subject to adjustment by
the Company as provided in Section 13.01(e) and 13.04) per $1,000 principal amount Note (the “Put
Value Obligation”) under the circumstances and during the periods set forth below.



     (b) In the event that the Company elects to:



57









 






     (i) distribute to all or substantially all holders of its outstanding shares of Common
Stock any rights or warrants entitling them for a period expiring not more than 60 calendar
days after the record date of such distribution to subscribe for or purchase shares of
Common Stock at a price per share less than the Last Reported Sale Price of the Common Stock
on the Trading Day immediately preceding the record date for such distribution; or




     (ii) distribute to all or substantially all holders of Common Stock, assets or debt
securities of the Company or rights to purchase the Company’s securities, which distribution
has a per share value (as determined by the Board of Directors) exceeding
15% of the Last Reported Sale Price of the Common Stock on the Trading Day immediately
preceding the date of declaration of such distribution,


then, in either case, holders may put the Notes to the Company at any time on and after the date
that the Company provides notice to holders referred to in the next sentence until the earlier of
(1) 5:00 p.m. (New York City time) on the Business Day immediately preceding the Ex-Date for such
distribution or (2) the date the Company announces that such distribution will not take place. The
Company shall notify holders of any distribution referred to in either clause (i) or clause (ii)
above and of the resulting put right no later than 35 Business Days prior to the Ex-Date for such
distribution. Holders may not exercise this right if holders participate (as a result of holding
the Notes, and at the same time as the holders of Common Stock) in any of the distributions
described in clauses (i) or (ii) above as if such holders held a number of shares of Common Stock
equal to the applicable Put Value Rate on the record date for such distribution, multiplied by the
aggregate principal amount (expressed in thousands) of Notes held by such holders, without having
to put their Notes.




     (c) If the Company consolidates with or merges with or into another Person or is a party to a
binding share exchange or conveys, transfers, sells, leases or otherwise disposes of all or
substantially all of its properties and assets in each case pursuant to which the Common Stock
would be converted into cash, securities and/or other property, then the holders shall have the
right to put the Notes to the Company at any time beginning 30 Business Days prior to the
anticipated effective date of such transaction and until and including the date that is the 30th
Business Day after the effective date of such transaction; provided such transaction does not
otherwise constitute a Designated Event to which the provisions of Section 13.01(d) shall apply.
The Company will notify holders of Notes at least 35 Business Days prior to the anticipated
effective date of such transaction. The Board of Directors shall determine the anticipated
effective date of the transaction, and such determination shall be conclusive and binding on the
holders and shall be publicly announced by the Company and posted on its web site not later than 32
Business Days prior to the anticipated effective date of the transaction.



     (d) If the Company is a party to any transaction or event that constitutes a Designated Event,
a holder may put the Notes to the Company at any time from and after the 30th Business Day prior to
the anticipated effective date of such transaction or event until the related Designated Event
Purchase Date. In addition, if such Designated Event also constitutes a Fundamental Change, the
holder shall be entitled to an increase in the Put Value Rate, if any,



58









 







specified in Section
13.01(e). The Company shall give notice in writing to all record Noteholders and the Trustee of the
Designated Event no later than 35 Business Days prior to the anticipated effective date of the
Designated Event (the “Designated Event Notice”).



     (e) (i) If a Noteholder elects to put the Notes to the Company pursuant to Section 13.01(d) in
connection with a Fundamental Change that occurs prior to October 15, 2013, the Put Value Rate
applicable to each $1,000 principal amount of Notes that is put to the Company shall be increased
by an additional number of shares of Common Stock (the “Additional Shares”) as described below;
provided, however, that no increase will be made in the case of Fundamental Change if at least 90%
of the consideration paid for the Common Stock (excluding cash payments for fractional shares and
cash payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction
consists of shares of capital stock traded on a U.S.
national securities exchange or approved for quotation on a United States system of automated
dissemination of quotations of securities prices similar to NASDAQ Global Market prior to its
designation as a national securities exchange (or that will be so traded or quoted immediately
following the transaction) and as a result of such transaction the Notes become puttable based on
the Put Value Rate determined on the basis of shares of such capital stock. The Company shall
satisfy the Put Value Obligation with respect to each $1,000 principal amount of Notes put to it
in connection with a Fundamental Change pursuant to Section 13.02(b). For purposes of this Section
13.01(e), the exercise of the put rights shall be deemed to be “in connection” with a Fundamental
Change to the extent that such put exercise is effected during the time period specified in Section
13.01(d) (regardless of whether the provisions of clause (a)(i), (a)(ii), (b) or (c) of this
Section 13.01 shall apply to such put exercise). For the avoidance of doubt, holders that receive
Additional Shares pursuant to this Section 13.01(e) with respect to Notes being put to the Company
in connection with a Fundamental Change will not be entitled to a Coupon Make-Whole Payment for
such Notes pursuant to Section 13.11.




     (ii) The number of Additional Shares by which the Put Value Rate will be increased
pursuant to this Section 13.01(e) shall be determined by reference to the table attached as
Schedule A-1 hereto, based on the date on which the Fundamental Change occurs or becomes
effective (the “Effective Date”), and the Stock Price; provided that if the actual Stock
Price is between two Stock Price amounts in the table or the Effective Date is between two
Effective Dates in the table, the number of Additional Shares shall be determined by a
straight-line interpolation between the number of Additional Shares set forth for the next
higher and next lower Stock Price amounts and the two nearest Effective Dates, as
applicable, based on a 365-day year; provided further that if (1) the Stock Price is greater
than $29.00 per share of Common Stock (subject to adjustment in the same manner as set
forth in Section 13.04), or (2) the Stock Price is less than $12.41 per share of Common
Stock (subject to adjustment in the same manner as set forth in Section 13.04), then, in
each case, no adjustment to the Put Value Rate in respect of Additional Shares will be made
pursuant to this Section 13.01(e).




     (iii) The Stock Prices set forth in the first row of the table in Schedule A-1 hereto
shall be adjusted by the Company as of any date on which the Put Value Rate of the Notes is
adjusted (except for any adjustment pursuant to this Section 13.01(e)). The



59









 







adjusted Stock
Prices shall equal the Stock Prices applicable immediately prior to such adjustment,
multiplied by a fraction, the numerator of which is the Put Value Rate in effect immediately
prior to the adjustment giving rise to the Stock Price adjustment and the denominator of
which is the Put Value Rate as so adjusted. The number of Additional Shares within the table
shall be adjusted in the same manner as the Put Value Rate as set forth in Section 13.04
(except for any adjustment pursuant to this Section 13.01(e)).




     (iv) For the avoidance of doubt, if a holder puts the Notes to the Company prior to the
effective date of a Fundamental Change, and the Fundamental Change does not occur, the
holder will not be entitled to an increased Put Value Rate in connection with such put
exercise.



     Section 13.02. Put Exercise Procedure.



     (a) The Company will satisfy the Put Value Obligation with respect to each $1,000 principal
amount of Notes put to the Company by delivering, on the third Business Day immediately following
the last day of the Observation Period for the related Put Exercise Date,
a number of
 shares of Common Stock
equal to the sum of the quotients obtained by dividing (i) the Daily Put Values for each of the 10 VWAP Trading Days during such
Observation Period by (ii) the Daily VWAP for such VWAP Trading Day,
provided that the Company will deliver cash in lieu of fractional shares of
Common Stock as set forth pursuant to clause (k) below. The Daily Put Values shall be determined
by the Company following the last day of the Observation Period.



     (b) Notwithstanding Section 13.02(a), the Company shall satisfy the Put Value Obligation with
respect to each $1,000 principal amount of Notes put to it in connection with a Fundamental Change
pursuant to Section 13.01(d) pursuant to this clause (b).




     (i) If the last day of the applicable Observation Period related to Notes put to the
Company is prior to the third Scheduled Trading Day preceding the Effective Date of the
Fundamental Change, the Company will satisfy the related Put Value Obligation with respect
to each $1,000 principal amount of Notes put to the Company as described in Section 13.02(a)
by delivering shares of Common Stock (and cash in lieu of fractional shares, if any) based
on the Put Value Rate, but without regard to the number of Additional Shares to be added to
the Put Value Rate pursuant to Section 13.01(e), on the third Business Day immediately
following the last day of the applicable Observation Period. As soon as practicable
following the Effective Date of the Fundamental Change, the Company will deliver the
increase in such amount of shares of Common Stock (and cash in lieu of fractional shares, if
any) as if the Put Value Rate had been increased by such number of Additional Shares during
the related Observation Period (and based upon the related Daily VWAP prices during such
Observation Period). If such increased amount of shares of Common Stock results in an
increase to the number of shares of Common Stock delivered to holders, the Company will
deliver such increase by delivering Reference Property based on such increased number of
shares.




     (ii) If the last day of the applicable Observation Period related to Notes put to the
Company is on or following the third Scheduled Trading Day preceding the Effective



60









 







Date of
such Fundamental Change, the Company will satisfy the Put Value Obligation with respect to
each $1,000 principal amount of Notes put to the Company as described in Section 13.02(d)
(based on the Put Value Rate as increased by the Additional Shares pursuant to Section
13.01(e) above) on the later to occur of (1) the Effective Date of the Fundamental Change
and (2) the third Business Day immediately following the last day of the applicable
Observation Period.



     (c) Before any holder of a Note shall be entitled to exercise its put right as set forth
above, such holder shall (i) in the case of a Global Note, comply with the procedures of the
Depositary in effect at that time and, if required, pay funds equal to interest payable on the next
Interest Payment Date to which such holder is not entitled as set forth in Section 13.02(i) and, if
required, pay all taxes or duties, if any, and (ii) in the case of a Note issued in certificated
form, (A) complete and manually sign and deliver an irrevocable written notice to the Put Exercise
Agent in the form on the reverse of such certificated Note (or a facsimile thereof) (a “Put
Exercise Notice”) at the office of the Put Exercise Agent and shall state in writing therein the
principal amount of Notes to be put to the Company and the name or names (with addresses) in
which such holder wishes the certificate or certificates for any shares of Common Stock, if
any, to be delivered upon settlement of the Put Value Obligation to be registered, (B) surrender
such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement
and transfer documents), at the office of the Put Exercise Agent, (C) if required, pay funds equal
to interest payable on the next Interest Payment Date to which such holder is not entitled as set
forth in Section 13.02(i), and (D) if required, pay all taxes or duties, if any. A Note shall be
deemed to have been put to the Company immediately prior to the close of business on the date (the
“Put Exercise Date”) that the holder has complied with the requirements set forth in this Section
13.02(c).



     No Put Exercise Notice with respect to any Notes may be delivered by a holder thereof if such
holder has also tendered a Designated Event Purchase Notice and not validly withdrawn such
Designated Event Purchase Notice in accordance with the applicable provisions of Section 14.01.



     If more than one Note shall be put to the Company at one time by the same holder, the Put
Value Obligation with respect to such Notes, if any, that shall be payable upon put exercise shall
be computed on the basis of the aggregate principal amount of the Notes (or specified portions
thereof to the extent permitted thereby) so put to the Company.



     (d) Delivery of the amounts owing in satisfaction of the Put Value Obligation shall be made by
the Company in no event later than the date specified in Section 13.02(a), except to the extent
specified in Section 13.02(b). The Company shall make such delivery by issuing, or causing to be
issued, and delivering to the Put Exercise Agent or to such holder, or such holder’s nominee or
nominees, certificates or a book-entry transfer through the Depositary for the number of full
shares of Common Stock, if any, to which such holder shall be entitled as part of such Put Value
Obligation (together with any cash in lieu of fractional shares).



61









 





     (e) In case any Note shall be surrendered for partial put exercise, the Company shall execute
and the Trustee shall authenticate and deliver to or upon the written order of the holder of the
Note so surrendered, without charge to such holder, a new Note or Notes in authorized denominations
in an aggregate principal amount equal to the portion of the surrendered Notes not put to the
Company.



     (f) The Company shall pay all stamp and other duties, if any, which may be imposed by the
United States or any political subdivision thereof or taxing authority thereof or therein with
respect to the issuance of shares of Common Stock upon the put exercise. However, the holder shall
pay any such tax which is due because the holder requests any shares of Common Stock to be issued
in a name other than the holder’s name. The Put Exercise Agent may refuse to deliver the
certificates representing the shares of Common Stock being issued in a name other than the holder’s
name until the Trustee receives a sum sufficient to pay any tax which will be due because the
shares are to be issued in a name other than the holder’s name. Nothing herein shall preclude any
tax withholding required by law or regulations.



     (g) Except as provided in Section 13.04, no adjustment shall be made for dividends on any
shares issued the Company with respect to any Note as provided in this Article.



     (h) Upon the put exercise with respect to an interest in a Global Note, the Trustee, or the
Custodian at the direction of the Trustee, shall make a notation on such Global Note as to the
reduction in the principal amount represented thereby. The Company shall notify the Trustee in
writing of any Notes put to the Company through any Put Exercise Agent other than the Trustee.



     (i) Upon put exercise, a Noteholder shall not receive any separate cash payment for accrued
and unpaid interest except as set forth below. The Company’s settlement of the Put
Value Obligation
as described above shall be deemed to satisfy its obligation to pay the principal amount of the
Note and accrued and unpaid interest to, but not including, the Put Exercise Date. As a result,
accrued and unpaid interest to, but not including, the Put Exercise Date shall be deemed to be paid
in full rather than cancelled, extinguished or forfeited. Notwithstanding the preceding sentence,
if Notes are put to the Company after the close of business on a record date, holders of such Notes
as of the close of business on the record date will receive the interest payable on such Notes on
the corresponding Interest Payment Date notwithstanding the put exercise. Notes surrendered for put
exercise during the period from the close of business on any regular record date to the opening of
business on the corresponding Interest Payment Date must be accompanied by payment of an amount
equal to the interest payable on the Notes so put to the Company; provided, however, that no such
payment need be made (i) if the Company has specified a Designated Event Purchase Date that is
after a record date and on or prior to the corresponding Interest Payment Date; (ii) in respect of
any put exercise that occurs after the record date immediately preceding the Maturity Date; or
(iii) to the extent of any overdue interest existing at the time of put exercise with respect to
such Note. Except as described above, no payment or adjustment will be made for accrued interest on
the Notes put to the Company.



     (j) The Person in whose name the certificate for any shares of Common Stock issued upon the
put exercise is registered shall be treated as a shareholder of record on and after the Put



62









 







Exercise Date; provided, however, that no surrender of Notes on any date when the stock transfer
books of the Company shall be closed shall be effective to constitute the Person or Persons
entitled to receive the shares of Common Stock as the record holder or holders of such shares of
Common Stock on such date, but such surrender shall be effective to constitute the Person or
Persons entitled to receive such shares of Common Stock as the record holder or holders thereof for
all purposes at the close of business on the next succeeding day on which such stock transfer books
are open; such put exercise shall be at the Put Value Rate in effect during the Observation Period
for the Put Exercise Date on the date that such Notes shall have been surrendered for put exercise,
as if the stock transfer books of the Company had not been closed. Upon the put exercise with
respect to the Notes, such Person shall no longer be a Noteholder.



     (k) No fractional shares of Common Stock shall be issued upon the exercise of any Note or
Notes put to the Company. If more than one Note shall be surrendered for put exercise at one time
by the same holder, the number of full shares that shall be issued by the Company shall be computed
on the basis of the aggregate principal amount of the Notes (or specified portions thereof) so
surrendered. Instead of any fractional share of Common Stock that would otherwise be issued with
respect to any Note or Notes (or specified portions thereof), the Company shall pay a cash
adjustment in respect of such fraction (calculated to the nearest one-100th of a share) in an
amount equal to the same fraction of the Last Reported Sale Price of the Common Stock on the last
Trading Day of the applicable Observation Period.



     Section 13.03. Related Party Limitation. Notwithstanding anything to the contrary in this
Article 13, no Noteholder that is a Related Party on the date that such Noteholder exercises its
put rights pursuant to this Article 13 shall be entitled to acquire shares of Common Stock
delivered upon a put of its Notes if the amount of shares of Common Stock required to be issued to
such Related Party would exceed 1% of the voting power of the Company or 1% of the Common Stock
prior to the issuance, unless the Company has obtained shareholder approval of the issuance of the
Notes, including approval of the issuance of the underlying Common Stock, pursuant to Section
312.03 of the Listed Company Manual of the New York Stock Exchange, which it shall be under no
obligation to seek. If, pursuant to this Section 13.03, a Noteholder is not entitled to acquire
shares of Common Stock upon the exercise of its put rights, the Company will satisfy the Put Value
Obligation for Notes put to the Company by such Noteholder by delivering cash equal to the sum of
the Daily Put Values for each of the 10 VWAP Trading Days during the Observation Period.



     Section 13.04. Adjustment of Put Value Rate. The Put Value Rate shall be adjusted from time
to time by the Company as follows:



     (a) In case the Company shall issue shares of Common Stock as a dividend or distribution to
all holders of the outstanding Common Stock on shares of Common Stock, or if the Company effects a
share split or share combination, the Put Value Rate shall be adjusted based on the following
formula:



63









 










	 	 	 	 	 
	where
	 	 	 	 
	 
	 	 	 	 
	PVR0

	 	=
	 	the Put Value Rate in effect immediately prior to the Ex-Date for such
dividend or distribution or the effective date of such share split or share
combination, as the case may be;
	 
	 	 	 	 
	PVR’

	 	=
	 	the Put Value Rate in effect immediately after the Ex-Date for such dividend
or distribution, or the effective date of such share split or share combination, as the
case may be;
	 
	 	 	 	 
	OS0

	 	=
	 	the number of shares of Common Stock outstanding immediately prior to the
Ex-Date for such dividend or distribution or the effective date of such share split or
combination, as the case may be;
	 
	 	 	 	 
	OS’

	 	=
	 	the number of shares of Common Stock outstanding immediately after such
dividend, distribution, share split or combination, as the case may be.






     Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the
Ex-Date fixed for such dividend or distribution, or the effective date for such share split or
share combination. If any dividend or distribution of the type described in this Section 13.04(a)
is declared but not so paid or made, or the outstanding shares of Common Stock are not split
or combined, as the case may be, the Put Value Rate shall be immediately readjusted, effective as
of the date the Board of Directors determines not to pay such dividend or distribution, or split or
combine the outstanding shares of Common Stock, as the case may be, to the Put Value Rate that
would then be in effect if such dividend, distribution, share split or share combination had not
been declared. In no event (except for share combinations) shall the Put Value Rate be decreased
pursuant to this Section 13.04(a).



     (b) In case the Company shall distribute to all or substantially all holders of its
outstanding shares of Common Stock any rights or warrants entitling them for a period expiring not
more than 60 calendar days after the record date of such distribution to subscribe for or purchase
shares of the Common Stock, at a price per share less than the Last Reported Sale Price of the
Common Stock on the Trading Day immediately preceding the record date for such distribution, the
Put Value Rate shall be adjusted based on the following formula:








	 	 	 	 	 
	where
	 	 	 	 
	 
	 	 	 	 
	PVR0

	 	=
	 	the Put Value Rate in effect immediately prior to the Ex-Date for such
distribution;






64









 






	 	 	 	 	 
	PVR’

	 	=
	 	the Put Value Rate in effect immediately after the Ex-Date for such
distribution;
	 
	 	 	 	 
	OS0

	 	=
	 	the number of shares of Common Stock outstanding immediately prior to the
Ex-Date for such distribution;
	 
	 	 	 	 
	X

	 	=
	 	the total number of shares of Common Stock issuable pursuant to such rights
or warrants; and
	 
	 	 	 	 
	Y

	 	=
	 	the number of shares of Common Stock equal to the aggregate price payable to
exercise such rights or warrants divided by the average of the Last Reported Sale
Prices of Common Stock over the ten consecutive Trading Day period ending on the
Business Day immediately preceding the Ex-Date for such distribution.






     Such adjustment shall be successively made whenever any such rights or warrants are
distributed and shall become effective immediately after the opening of business on the Ex-Date for
such distribution. The Company shall not issue any such rights or warrants in respect of shares of
the Common Stock held in treasury by the Company. To the extent that shares of the Common Stock
are not delivered after the expiration of such rights or warrants, the Put Value Rate shall be
readjusted to the Put Value Rate that would then be in effect had the adjustments made upon the
issuance of such rights or warrants been made on the basis of delivery of only the number of shares
of Common Stock actually delivered. If such rights or warrants are not so
issued, the Put Value Rate shall again be adjusted to be the Put Value Rate that would then be in
effect if such Ex- Date for such distribution had not been fixed.



     In determining whether any rights or warrants entitle the holders to subscribe for or purchase
shares of the Common Stock at less than such Last Reported Sale Price of the Common Stock, and in
determining the aggregate offering price of such shares of the Common Stock, there shall be taken
into account any consideration received by the Company for such rights or warrants and any amount
payable on exercise or conversion thereof, the value of such consideration, if other than cash, to
be determined by the Board of Directors. In no event shall the Put Value Rate be decreased
pursuant to this Section 13.04(b).



     (c) In case the Company shall distribute shares of its capital stock, evidences of its
indebtedness or its other assets or property other than (i) dividends or distributions referred to
in Section 13.04(a) and Section 13.04(b), (ii) dividends or distributions paid exclusively in cash,
and (iii) Spin-Offs to which the provisions set forth below in this Section 13.04(c) shall apply
(any of such shares of capital stock, indebtedness, or other asset or property hereinafter in this
Section 13.04(c) called the “Distributed Property”), to all or substantially all holders of its
Common Stock, then, in each such case the Put Value Rate shall be adjusted based on the following
formula:










65









 








	 	 	 	 	 
	where
	 	 	 	 
	 
	 	 	 	 
	PVR0

	 	=
	 	the Put Value Rate in effect immediately prior to the Ex-Date for such
distribution;
	 
	 	 	 	 
	PVR’

	 	=
	 	the Put Value Rate in effect immediately after the Ex-Date for such
distribution;
	 
	 	 	 	 
	SP0

	 	=
	 	the average of the Last Reported Sale Prices of the Common Stock over the
ten consecutive Trading Day period ending on the Trading Day immediately preceding the
Ex-Date relating to such distribution; and
	 
	 	 	 	 
	FMV

	 	=
	 	the fair market value (as determined by the Board of Directors) of the shares
of capital stock, evidences of indebtedness, assets or property distributed with
respect to each outstanding share of Common Stock on the Ex-Date for such distribution.






     Such adjustment shall become effective immediately prior to the opening of business on the
Ex-Date for such distribution; provided that if “FMV” as set forth above is equal to or greater
than
“SP0” as set forth above, in lieu of the foregoing adjustment, adequate provision
shall be made so that each Noteholder shall receive on the date on which the Distributed Property
is distributed to holders of Common Stock, for each $1,000 principal amount of Notes, the amount of
Distributed Property such holder would have received had such holder owned a number of shares of
Common Stock equal to the Put Value Rate on the record date for such distribution,
without being required to put the Notes to the Company. If such distribution is not so paid
or made, the Put Value Rate shall again be adjusted to be the Put Value Rate that would then be in
effect if such dividend or distribution had not been declared. If the Board of Directors
determines “FMV” for purposes of this Section 13.04(c) by reference to the actual or when issued
trading market for any securities, it must in doing so consider the prices in such market over the
same period used in computing the Last Reported Sale Prices of the Common Stock over the ten
consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Date for such
distribution.



     With respect to an adjustment pursuant to this Section 13.04(c) where there has been a payment
of a dividend or other distribution on the Common Stock in shares of capital stock of any class or
series, or similar equity interest, of or relating to a Subsidiary or other business unit of the
Company (a “Spin-Off”), the Put Value Rate in effect immediately before 5:00 p.m., New York City
time, on the 10th Trading Day immediately following, and including, the effective date of the
Spin-Off will be increased based on the following formula:









66









 








	 	 	 	 	 
	where
	 	 	 	 
	 
	 	 	 	 
	PVR0

	 	=
	 	the Put Value Rate in effect immediately prior to the 10th Trading Day
immediately following, and including, the effective date of the Spin-Off;
	 
	 	 	 	 
	PVR’

	 	=
	 	the Put Value Rate in effect immediately after the 10th Trading Day
immediately following, and including, the effective date of the Spin-Off;
	 
	 	 	 	 
	FMV0

	 	=
	 	the average of the Last Reported Sale Prices of the capital stock or
similar equity interest distributed to holders of Common Stock applicable to one share
of Common Stock over the first ten consecutive Trading Day period immediately
following, and including, the effective date of the Spin-Off; and
	 
	 	 	 	 
	MP0

	 	=
	 	the average of the Last Reported Sale Prices of Common Stock over the first
ten consecutive Trading Day period, immediately following, and including the effective
date of the Spin-Off.






     Such adjustment to the Put Value Rate shall occur after the close of business on the tenth
Trading Day immediately following, and including, the effective date of the Spin-Off; provided that
in respect of any put exercise within the ten Trading Days following, and including, the effective
date of any Spin-Off, references within this paragraph (c) to ten Trading Days shall be deemed
replaced with such lesser number of Trading Days as have elapsed between the effective date of such
Spin-Off and the Put Exercise Date in determining the applicable Put Value Rate.



     Rights or warrants distributed by the Company to all holders of Common Stock, entitling the
holders thereof to subscribe for or purchase shares of the Company’s capital stock, including
Common Stock (either initially or under certain circumstances), which rights or warrants, until the
occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred
with such shares of Common Stock; (ii) are not exercisable; and (iii) are also issued in
respect of future issuances of Common Stock, shall be deemed not to have been distributed for
purposes of this Section 13.04 (and no adjustment to the Put Value Rate under this Section 13.04
will be required) until the occurrence of the earliest Trigger Event, whereupon such rights and
warrants shall be deemed to have been distributed and an appropriate adjustment (if any is
required) to the Put Value Rate shall be made under this Section 13.04(c). If any such right or
warrant, including any such existing rights or warrants distributed prior to the date of this
Indenture, are subject to events, upon the occurrence of which such rights or warrants become
exercisable to purchase different securities, evidences of indebtedness or other assets, then the
date of the occurrence of any and each such event shall be deemed to be the date of distribution
and Ex-Date with respect to new rights or warrants with such rights (and a termination or
expiration of the existing rights or warrants without exercise by any of the holders thereof). In
addition, in the event of any distribution (or deemed distribution) of rights or warrants, or any
Trigger Event or other event (of the type described in the preceding sentence) with respect thereto
that was counted for purposes of calculating a distribution amount for which an adjustment to the
Put Value Rate under this Section 13.04 was made, (1) in the case of any such rights or warrants
that shall all have been redeemed or repurchased without exercise by any holders thereof, the Put
Value Rate shall be readjusted upon such final redemption or repurchase to give effect to such
distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to
the per share



67









 







redemption or repurchase price received by a holder or holders of Common Stock with
respect to such rights or warrants (assuming such holder had retained such rights or warrants),
made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the
case of such rights or warrants that shall have expired or been terminated without exercise by any
holders thereof, the Put Value Rate shall be readjusted as if such rights and warrants had not been
issued.



     In no event shall the Put Value Rate be decreased pursuant to this Section 13.04(c).



     For purposes of this Section 13.04(c), Section 13.04(a) and Section 13.04(b), any dividend or
distribution to which this Section 13.04(c) is applicable that also includes shares of Common Stock
to which Section 13.04(a) applies and/or also includes rights or warrants to subscribe for or
purchase shares of Common Stock to which Section 13.04(b) applies shall be deemed instead to be (1)
a dividend or distribution of the Distributed Property other than such shares of Common Stock to
which Section 13.04(a) applies and/or other than such rights or warrants to which Section 13.04(b)
applies and any Put Value Rate adjustment required by this Section 13.04(c) with respect to such
dividend or distribution shall then be made immediately followed by (2) a dividend or distribution
of such shares of Common Stock or such rights or warrants (and any further Put Value Rate
adjustment required by Section 13.04(a) and/or Section 13.04(b) with respect to such dividend or
distribution shall then be made), except (A) the Ex-Date of such dividend or distribution shall
under this Section 13.04(c) be substituted as “the Ex-Date” within the meaning of Section 13.04(a)
and Section 13.04(b) and (B) any shares of Common Stock included in such dividend or distribution
shall not be deemed “outstanding immediately prior to the Ex-Date for such dividend or
distribution, or the effective date of such share split or share combination, as the case may be”
within the meaning of Section 13.04(a) or “outstanding immediately prior to the Ex-Date for such
distribution” within the meaning of Section 13.04(b).



     (d) In case the Company shall pay a dividend or make a distribution consisting exclusively of
cash to all or substantially all holders of its Common Stock, the Put Value Rate shall be adjusted
based on the following formula:








	 	 	 	 	 
	where
	 	 	 	 
	 
	 	 	 	 
	PVR0

	 	=
	 	the Put Value Rate in effect immediately prior to the Ex-Date for such
distribution;
	 
	 	 	 	 
	PVR’

	 	=
	 	the Put Value Rate in effect immediately after the Ex-Date for such
distribution;
	 
	 	 	 	 
	SP0

	 	=
	 	the Last Reported Sale Price of the Common Stock on the Trading Day
immediately preceding the Ex-Date for such distribution; and






68









 






	 	 	 	 	 
	C

	 	=
	 	the amount in cash per share the Company distributes to holders of Common
Stock.






     Such adjustment shall become effective immediately after the opening of business on the
Ex-Date for such dividend or distribution; provided that if the portion of the cash so distributed
applicable to one share of the Common Stock is equal to or greater than SP0 as set forth
above, in lieu of the foregoing adjustment, adequate provision shall be made so that each
Noteholder shall receive on the date on which such cash dividend is distributed to holders of
Common Stock, for each $1,000 principal amount of Notes, the amount of cash such holder would have
received had such holder owned a number of shares equal to the Put Value Rate on the record date
for such distribution, without being required to put the Notes to the Company. If such dividend or
distribution is not so paid or made, the Put Value Rate shall again be adjusted to be the Put Value
Rate that would then be in effect if such dividend or distribution had not been declared. In no
event shall the Put Value Rate be decreased pursuant to this Section 13.04(d).



     For the avoidance of doubt, for purposes of this Section 13.04(d), in the event of any
reclassification of the Common Stock, as a result of which the Notes become convertible into more
than one class of Common Stock, if an adjustment to the Put Value Rate is required pursuant to this
Section 13.04(d), references in this Section to one share of Common Stock or Last Reported Sale
Price of one share of Common Stock shall be deemed to refer to a unit or to the price of a unit
consisting of the number of shares of each class of Common Stock into which the Notes are then
exercisable equal to the numbers of shares of such class issued in respect of one share of Common
Stock in such reclassification. The above provisions of this paragraph shall similarly apply to
successive reclassifications.



     (e) In case the Company or any of its Subsidiaries makes a payment in respect of a tender
offer or exchange offer for the Common Stock, to the extent that the cash and value of any other
consideration included in the payment per share of Common Stock exceeds the Last Reported Sale
Price of the Common Stock on the Trading Day next succeeding the last date on
which tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be
amended), the Put Value Rate shall be increased based on the following formula:








	 	 	 	 	 
	where
	 	 	 	 
	 
	 	 	 	 
	PVR0

	 	=
	 	the Put Value Rate in effect on the date such tender or exchange offer
expires;
	 
	 	 	 	 
	PVR’

	 	=
	 	the Put Value Rate in effect on the day next succeeding the date such tender
or exchange offer expires;
	 
	 	 	 	 
	AC

	 	=
	 	the aggregate value of all cash and any other consideration (as determined by
the Board of Directors) paid or payable for shares of Common Stock purchased in such
tender or exchange offer;






69









 






	 	 	 	 	 
	OS0

	 	=
	 	the number of shares of Common Stock outstanding immediately prior to the
date such tender or exchange offer expires;
	 
	 	 	 	 
	OS’

	 	=
	 	the number of shares of Common Stock outstanding immediately after the date
such tender or exchange offer expires (after giving effect to such tender offer or
exchange offer); and
	 
	 	 	 	 
	SP’

	 	=
	 	the Last Reported Sale Price of Common Stock on the Trading Day next
succeeding the date such tender or exchange offer expires,






     Such adjustment shall become effective immediately after close of business on the Trading Day
next succeeding the date such tender or exchange offer expires. If the Company or its Subsidiary is
obligated to purchase shares of Common Stock pursuant to any such tender or exchange offer, but the
Company or its Subsidiary is permanently prevented by applicable law from effecting all or any such
purchases or all or any portion of such purchases are rescinded, the Put Value Rate shall again be
adjusted to be the Put Value Rate that would then be in effect if such tender or exchange offer had
not been made or had only been made in respect of the purchases that had been effected. In no event
shall the Put Value Rate be decreased pursuant to this Section 13.04(e).



     (f) For purposes of this Section 13.04 the term “record date” shall mean, with respect to any
dividend, distribution or other transaction or event in which the holders of Common Stock have the
right to receive any cash, securities or other property or in which the Common Stock (or other
applicable security) is exchanged for or converted into any combination of cash, securities or
other property, the date fixed for determination of shareholders entitled to receive such cash,
securities or other property (whether such date is fixed by the Board of Directors or by statute,
contract or otherwise).



     (g) In addition to those required by clauses (a), (b), (c), (d), and (e) of this Section
13.04, and to the extent permitted by applicable law, the Company from time to time may
increase the Put Value Rate by any amount for a period of at least 20 calendar days if the
Board of Directors determines that such increase would be in the Company’s best interest. In
addition, the Company may also (but is not required to) increase the Put Value Rate to avoid or
diminish any income tax to holders of Common Stock or rights to purchase Common Stock in connection
with any dividend or distribution of shares (or rights to acquire shares) or similar event.
Whenever the Put Value Rate is increased pursuant to the preceding sentence, the Company shall mail
to the holder of each Note at its last address appearing on the Note Register provided for in
Section 2.06 a notice of the increase at least fifteen days prior to the date the increased Put
Value Rate takes effect, and such notice shall state the increased Put Value Rate and the period
during which it will be in effect.



     (h) All calculations and other determinations under this Article 13 shall be made by the
Company and shall be made to the nearest cent or to the nearest one-ten thousandth (1/10,000) of a
share, as the case may be. No adjustment shall be made for the Company’s issuance of Common Stock
or convertible or exchangeable securities or rights to purchase Common Stock or



70









 







convertible or
exchangeable securities, other than as provided in this Section 13.04. No adjustment shall be made
to the Put Value Rate unless such adjustment would require a change of at least 1% in the Put Value
Rate then in effect at such time. The Company shall carry forward any adjustments that are less
than 1% of the Put Value Rate, take such carry-forward adjustments into account in any subsequent
adjustment and make such carried forward adjustments, regardless of whether the aggregate
adjustment is less than 1% within one year of the first such adjustment carried forward, upon a
Designated Event, or upon maturity, unless any such adjustment has already been made.



     (i) Whenever the Put Value Rate is adjusted as herein provided, the Company shall promptly
file with the Trustee and any Put Exercise Agent other than the Trustee an Officers’ Certificate
setting forth the Put Value Rate after such adjustment and setting forth a brief statement of the
facts requiring such adjustment. The Trustee and Put Exercise Agent may conclusively rely on the
accuracy of the Put Value Rate adjustment provided by the Company. Unless and until a Responsible
Officer of the Trustee shall have received such Officers’ Certificate, the Trustee shall not be
deemed to have knowledge of any adjustment of the Put Value Rate and may assume without inquiry
that the last Put Value Rate of which it has knowledge is still in effect. Promptly after delivery
of such certificate, the Company shall prepare a notice of such adjustment of the Put Value Rate
setting forth the adjusted Put Value Rate and the date on which each adjustment becomes effective
and shall mail such notice of such adjustment of the Put Value Rate to the holder of each Note at
his last address appearing on the Note Register provided for in Section 2.06 of this Indenture,
within twenty (20) days of the effective date of such adjustment. Failure to deliver such notice
shall not affect the legality or validity of any such adjustment.



     (j) The applicable Put Value Rate will not be adjusted:



          (i) upon the issuance of any shares of the Common Stock pursuant to any present or future plan
providing for the reinvestment of dividends or interest payable on the Company’s securities and the
investment of additional optional amounts in shares of the Common Stock under any plan;




          (ii) upon the issuance of any shares of the Common Stock or restricted stock units or options
or rights (including shareholder appreciation rights) to purchase those shares pursuant to any
present or future employee, director or consultant benefit plan or program of or assumed by the
Company or any of the Company’s Subsidiaries;




          (iii) upon the issuance of any shares of the Common Stock pursuant to any option, warrant,
right or exercisable, exchangeable or convertible securities not described in clause (ii) of this
subsection and outstanding as of the date the Notes were first issued;




          (iv) for a change in the par value of the Common Stock;




          (v) for accrued and unpaid interest; or





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          (vi) for any transactions described in this Section 13.04 if Noteholders participate (as a
result of holding the Notes, and at the same time as holders of Common Stock participate) in such
transactions as if such Noteholders held a number shares of Common Stock equal to the Put Value
Rate at the time such adjustment would be required, multiplied by the principal amount (expressed
in thousands) of Notes held by such Noteholders, without having to put their Notes to the Company.




     (k) For purposes of this Section 13.04, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.



     Section 13.05. Reserved.



     Section 13.06. Effect of Reclassification, Consolidation, Merger or Sale.



     If any of the following events occur, namely (i) any reclassification or change of the
outstanding shares of Common Stock (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a split, subdivision or combination),
(ii) any consolidation, merger or combination of the Company with another Person, or (iii) any sale
or conveyance of all or substantially all of the property and assets of the Company to any other
Person, in either case as a result of which holders of Common Stock shall be entitled to receive
cash, securities or other property or assets with respect to or in exchange for such Common Stock
(any such event a “Merger Event”), then:



     (a) the Company or the successor or purchasing Person, as the case may be, shall execute with
the Trustee a supplemental indenture (which shall comply with the Trust Indenture Act as in force
at the date of execution of such supplemental indenture if such supplemental indenture is then
required to so comply) permitted under Section 9.01(a) providing for the put exercise and
settlement of the Notes as set forth in this Indenture. Such supplemental indenture shall provide
for adjustments which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article and the Trustee may conclusively rely on the
determination by the Company of the equivalency of such adjustments. If, in the case of any Merger
Event, the Reference Property includes shares of stock or other securities and assets of a
corporation other than the successor or purchasing corporation, as the case may be, in such
reclassification, change, consolidation, merger, combination, sale or conveyance, then such
supplemental indenture shall also be executed by such other corporation and shall contain such
additional provisions to protect the interests of the holders of the Notes as the Board of
Directors shall reasonably consider necessary by reason of the foregoing, including to the extent
required by the Board of Directors and practicable the provisions providing for the repurchase
rights set forth in Article 14 herein.



     In the event the Company shall execute a supplemental indenture pursuant to this Section
13.06, the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating
the reasons therefore, the kind or amount of cash, securities or property or asset that will



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constitute the Reference Property after any such Merger Event, any adjustment to be made with
respect thereto and that all conditions precedent have been complied with, and shall promptly mail
notice thereof to all Noteholders.



     (b) Notwithstanding the provisions of Section 13.02(a) and Section 13.02(b), and subject to
the provisions of Section 13.01, at the effective time of such Merger Event, the right to put each
$1,000 principal amount of Notes to the Company based on the Put Value Rate based on Shares of
Common Stock will be changed to the Put Value Rate based on the kind and amount of cash, securities
or other property or assets that a holder of a number of shares of Common Stock equal to the Put
Value Rate immediately prior to such transaction would have owned or been entitled to receive (the
“Reference Property”) such that from and after the effective time of such transaction upon the put
exercise by the Noteholder, a Noteholder will be entitled to receive with respect to its Notes in
lieu of the shares of Common Stock otherwise deliverable, the same type (and in the same
proportion) of Reference Property. The amount of any Reference Property shall be based on the Daily
Put Values in an amount equal to the applicable Put Value Rate, as described under Section
13.02(a).



     For purposes of determining the constitution of Reference Property, the type and amount of
consideration that a holder of Common Stock would have been entitled to in the case of
reclassifications, consolidations, mergers, sales or conveyance of assets or other transactions
that cause the Common Stock to be converted into the right to receive more than a single type of
consideration (determined based in part upon any form of shareholder election) will be deemed to be
the weighted average of the types and amounts of consideration received by the holders of Common
Stock that affirmatively make such an election. The Company shall not become a party to any such
transaction unless its terms are consistent with this Section 13.06. None of the foregoing
provisions shall affect the right of a holder of Notes to put its Notes to the Company in
accordance with the provisions of Article 13 hereof prior to the effective date of the Merger
Event.



     (c) The Company shall cause notice of the execution of such supplemental indenture to be
mailed to each Noteholder, at his address appearing on the Note Register provided for in this
Indenture, within twenty (20) days after execution thereof. Failure to deliver such notice shall
not affect the legality or validity of such supplemental indenture.



     (d) The above provisions of this Section shall apply to successive Merger Events.



     Section 13.07. Certain Covenants.



     (a) Before taking any action which would cause an adjustment reducing the Put Value Rate below
the then par value, if any, of the shares of Common Stock issuable upon a put, the Company will
take all corporate action which may, in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue shares of such Common Stock at such adjusted Put Value Rate.



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     The Company covenants that all shares of Common Stock issued upon a put will be fully paid and
non-assessable by the Company and free from all taxes, liens and charges with respect to the issue
thereof.



     (b) The Company covenants that, if any shares of Common Stock to be provided for the purpose
of a put require registration with or approval of any governmental authority under any federal or
state law before such shares may be validly issued upon such exercise, the Company will in good
faith and as expeditiously as possible, to the extent then permitted by the rules and
interpretations of the Commission (or any successor thereto), endeavor to secure such registration
or approval, as the case may be.



     (c) The Company further covenants that if at any time the Common Stock shall be listed on any
other national securities exchange or automated quotation system the Company will, if permitted and
required by the rules of such exchange or automated quotation system, list and keep listed, so long
as the Common Stock shall be so listed on such exchange or automated quotation system, all Common
Stock issuable upon a put.



     Section 13.08. Responsibility of Trustee. Notwithstanding any provision of this Indenture to
the contrary, the Trustee and any other Put Exercise Agent shall not at any time be under any duty
or responsibility to any Noteholder to determine the Put Value Rate or whether any facts exist
which may require any adjustment of the Put Value Rate, or with respect to the nature or extent or
calculation of any such adjustment when made, or with respect to the method employed, or herein or
in any supplemental indenture provided to be employed, in making the same. The Trustee and any
other Put Exercise Agent shall not be accountable with respect to the validity or value (or the
kind or amount) of any shares of Common Stock, or of any securities or property, which may at any
time be issued or delivered by the Company with respect to any Note; and the Trustee and any other
Put Exercise Agent make no representations with respect thereto. Neither the Trustee nor any Put
Exercise Agent shall be responsible for any failure of the Company to issue, transfer or deliver
any shares of Common Stock or stock certificates or other securities or property or cash upon the
surrender of any Note for the purpose of put exercise or to comply with any of the duties,
responsibilities or covenants of the Company contained in this Article.



     Without limiting the generality of the foregoing, neither the Trustee nor any Put Exercise
Agent shall be under any responsibility to determine the correctness of any provisions contained
in any supplemental indenture entered into pursuant to Section 13.06 relating either to the
kind or amount of shares of stock or securities or property (including cash) receivable by
Noteholders upon the put exercise after any event referred to in such Section 13.06 or to any
adjustment to be made with respect thereto, but, subject to the provisions of Section 6.01, may
accept as conclusive evidence of the correctness of any such provisions, and shall be protected in
relying upon, the Officers’ Certificate (which the Company shall be obligated to file with the
Trustee prior to the execution of any such supplemental indenture) with respect thereto.



     Section 13.09. Notice to Holders Prior to Certain Actions.



     In case:



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     (a) the Company shall declare a dividend (or any other distribution) on its Common Stock that
would require an adjustment in the Put Value Rate pursuant to Section 13.04; or



     (b) the Company shall authorize the granting to all of the holders of its Common Stock of
rights or warrants to subscribe for or purchase any share of any class or any other rights or
warrants, or



     (c) of any reclassification of the Common Stock of the Company (other than a subdivision or
combination of its outstanding Common Stock, or a change in par value, or from par value to no par
value, or from no par value to par value), or of any consolidation or merger to which the Company
is a party and for which approval of any shareholders of the Company is required, or of the sale or
transfer of all or substantially all of the assets of the Company; or



     (d) of the voluntary or involuntary dissolution, liquidation or winding-up of the Company;


the Company shall cause to be filed with the Trustee and to be mailed to each Noteholder at his
address appearing on the Note Register, provided for in Section 2.06 of this Indenture, as promptly
as possible but in any event at least twenty days prior to the applicable date specified in clause
(x) or (y) below, as the case may be, a notice stating (x) the date on which a record is to be
taken for the purpose of such dividend, distribution or rights or warrants, or, if a record is not
to be taken, the date as of which the holders of Common Stock of record to be entitled to such
dividend, distribution or rights are to be determined, or (y) the date on which such
reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up is
expected to become effective or occur, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up. Failure to give such notice, or any defect therein, shall
not affect the legality or validity of such dividend, distribution, reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or
winding-up.




     Section 13.10. Shareholder Rights Plans. To the extent that the Company has a shareholder
rights plan (the “Rights Plan”) in effect upon a put of the Notes, the holders shall
receive, in addition to any shares of Common Stock, the associated rights issued under the
Rights Plan or under any future shareholder rights plan the Company adopts. If the rights have
separated from the Common Stock, expired, terminated or been redeemed or exchanged in accordance
with the Rights Plan prior to any delivery of shares by the Company in respect of any put exercise,
the Put Value Rate will be adjusted at the time of separation as if the Company distributed to all
holders of the Common Stock, shares of its capital stock, evidences of indebtedness or assets as
set forth in Section 13.04(c), subject to readjustment in the event of the expiration, termination
or redemption of such rights.



     Section 13.11. Termination of Put Rights by the Company.



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     (a) The Company may, at its option and subject to the last sentence of this paragraph, elect
to terminate the right of the holders to put their Notes to the Company (the “Put Right”) if at any
time the Daily VWAP of the Common Stock has equaled or exceeded 130% of the Put Value Price (the
“Termination Put Value Price”) then in effect for at least twenty (20) Trading Days within a period
of any thirty (30) consecutive Trading Days (a “Put Termination Trigger Event”). If the Company
elects to terminate the Put Right upon a Put Termination Trigger Event, the Company, or, at its
request, the Trustee in the name of and at the expense of the Company, will be required to deliver
an irrevocable notice to holders of Notes within five Trading Days of the date of the Put
Termination Trigger Event (the “Put Termination Notice,” and the date of such Put Termination
Notice, the “Put Termination Notice Date”). Holders may put their Notes at any time on or prior to
the twentieth (20th) day following the Put Termination Notice Date (the “Put Termination Date”),
subject to the restrictions set forth in Section 13.03. The Put Rights of holders shall terminate
after the Put Termination Date (a “Put Termination”), and thereafter the holders shall have no
rights to put Notes to the Company under the Notes or this Indenture. During the period from the
date of this Indenture until the date that is one-year after the later of the last date of original
issuance of the Notes and the last date on which the Company or any Affiliate of the Company was
the owner of the Notes, the Company may only terminate the Put Right upon a Put Termination Trigger
Event if a shelf registration statement that registers the resale of the Notes and the Common Stock
issuable upon a put of the Notes (including any shares issuable pursuant to the Coupon Make-Whole
Payment (as defined below), if applicable) (the “Shelf Registration Statement”) has been filed by
the Company and been declared effective by the Commission or is automatically effective and is
available for use, and the Company expects such Shelf Registration Statement to remain effective
and available for use from the Put Termination Notice Date until thirty (30) days following the Put
Termination Date. After the one-year period referenced in the immediately preceding sentence, the
Company may terminate the Put Right upon a Put Termination Trigger Event only so long as there is
an effective Shelf Registration Statement or the Common Stock issuable upon a put of the Notes
(including any shares issuable pursuant to the Coupon Make-Whole Payment (as defined below)) is
otherwise freely transferable by a person who is not an affiliate of the Company pursuant to Rule
144 under the Securities Act (or any successor provision thereto) without any volume or manner of
sale restrictions thereunder.



     If the Put Termination Date occurs prior to October 15, 2013, each holder whose Notes are put
to the Company after the Put Termination Notice Date and on or before the Put Termination Date will
receive an additional payment (the “Coupon Make-Whole Payment”) in
cash (except as provided below) with respect to the Notes put in an amount equal to the
aggregate amount of interest payments that would have been payable on the Notes from the last day
through which interest was paid on the Notes, or, if no interest has been paid, from, and
including, April 15, 2010, in each case to (but excluding) October 15, 2013. The Coupon
Make-Whole Payment shall be calculated in accordance with the foregoing as determined in good faith
by the Company. For the avoidance of doubt, holders that receive Additional Shares pursuant to
Section 13.01(e) with respect to Notes put to the Company in connection with a Fundamental Change
will not be entitled to a Coupon Make-Whole Payment for such put of Notes pursuant to this Section
13.11.



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     Notwithstanding the foregoing, the Company may, in its sole discretion, elect to make any or
all of such Coupon Make-Whole Payment in Common Stock in lieu of cash by providing notice of such
election in the Put Termination Notice. Such Common Stock will be valued at a price per share
equal to 95% of the Termination Put Value Price. Prior to or concurrently with such payment, the
Company will provide the Trustee with an Officers’ Certificate setting forth the calculation of the
payment required by this Section 13.11(a). The Trustee shall have no obligation or liability with
respect to the calculation of the payments required by this Section 13.11(a).



     (b) The Company shall mail the Put Termination Notice to the Trustee and to each holder (and
to beneficial owners as required by applicable law). The Put Termination Notice shall include the
form of the put election notice to be completed by the holder and shall state:




     (i) the Put Termination Date;




     (ii) briefly, the put rights of the Notes;




     (iii) the name and address of each Paying Agent and Put Exercise Agent;




     (iv) the Coupon Make-Whole Payment, and if the Company intends to pay any or all of the
Coupon Make-Whole Payment in shares of Common Stock in accordance with Section 13.11(a); and




     (v) the Put Value Price and the Put Value Rate and any adjustments thereto.



     Whenever in the Notes or in this Indenture there is a reference, in any context, to any
obligation of the Company with respect to a put of the Notes to the Company, such reference shall
be qualified by the put termination provisions of this Section 13.11, and the Company will not be
required to comply with any of the put provisions of the Notes and this Indenture (including,
without limitation, Article 13 (other than this Section 13.11)) after a Put Termination has
occurred pursuant to the provisions of Section 13.11 of this Indenture, and any express mention of
the put termination provisions of this Section 13.11 in any provision of this Indenture shall not
be construed as excluding the put termination provisions of this Section 13.11 in those provisions
of this Indenture when such express mention is not made.



     (c) Concurrently with the mailing of any such Put Termination Notice, the Company shall issue
a press release announcing such Put Termination, the form and content of which press
release shall be determined by the Company in good faith, but in its sole discretion, and in
accordance with applicable securities laws.



     During the period beginning on the date of the Put Termination Notice and ending on the date
following the Put Termination Date, the Company shall not publicly offer to sell any shares of
Common Stock or securities convertible into or exchangeable for Common Stock (other than the Common
Stock and shares issued pursuant to employee benefit plans, qualified stock option plans or other
employee compensation plans existing prior to the date of the Put Termination



77









 







Notice or pursuant to
then outstanding options, warrants or rights), or publicly offer to sell or grant options, rights
or warrants with respect to any shares of Common Stock or securities convertible into or
exchangeable for Common Stock (other than the grant of options pursuant to option plans existing
prior to the date of the Put Termination Notice).



     Section 13.12. Redemption of Notes. The Company may not redeem any Notes prior to October 15,
2013. On or after October 15, 2013, and prior to maturity, the Notes may be redeemed at any time or
from time to time at the option of the Company, in whole or in part. Upon any redemption pursuant
to this Section 13.12, the Company shall provide the notice required by Section 13.13 hereof (which
notice may be revoked at any time prior to the time at which the Company or the Trustee, as the
case may be, has given such notice to Noteholders) and shall pay a redemption price in cash equal
to 100% of the principal amount of the Notes being redeemed, together with accrued and unpaid
interest to, but excluding, the date fixed for redemption; provided that if the date fixed for
redemption falls after a record date and on or prior to the corresponding interest payment date,
then the interest payable on such Interest Payment Date shall be paid to the holders of record of
the Notes on the applicable record date instead of the holders surrendering the Notes for
redemption.



     Section 13.13. Notice of Optional Redemption; Selection of Notes. In case the Company shall
desire to exercise the right to redeem all or, as the case may be, any part of the Notes pursuant
to Section 13.12, it shall fix a date for redemption and it or, at its written request (which may
be revoked at any time prior to the time on which the Trustee has given notice to the holders of
the Notes) received by the Trustee not fewer than forty-five (45) days prior (or such shorter
period of time as may be acceptable to the Trustee) to the date fixed for redemption, the Trustee
in the name of and at the expense of the Company, shall mail or cause to be mailed a notice of such
redemption not fewer than thirty (30) nor more than sixty (60) days prior to the redemption date to
each holder of Notes so to be redeemed as a whole or in part at its last address as the same
appears on the Note Register; provided that if the Company shall give such notice, it shall also
give written notice of the redemption date to the Trustee. Such mailing shall be by first class
mail. The notice, if mailed in the manner herein provided, shall be conclusively presumed to have
been duly given, whether or not the holder receives such notice. In any case, failure to give such
notice by mail or any defect in the notice to the holder of any Note designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the redemption of any other
Note. Concurrently with the mailing of any such notice of redemption, the Company shall issue a
press release announcing such redemption, the form and content of which press release shall be
determined by the Company in its sole
discretion. The failure to issue any such press release or any defect therein shall not affect
the validity of the redemption notice or any of the proceedings for the redemption of any Note
called for redemption.



     Each such notice of redemption shall specify the aggregate principal amount of Notes to be
redeemed, the CUSIP number or numbers of the Notes being redeemed, the date fixed for redemption
(which shall be a Business Day), the redemption price at which Notes are to be redeemed, the place
or places of payment, that payment will be made upon presentation and surrender of such Notes, that
interest accrued and unpaid to the date fixed for redemption will be paid as specified in said
notice, and that on and after said date interest thereon or on the portion



78









 







thereof to be redeemed
will cease to accrue. Such notice shall also state, if applicable, the current Put Value Rate and
the date on which the right to put such Notes or portions thereof will expire. If fewer than all
the Notes are to be redeemed, the notice of redemption shall identify the Notes to be redeemed
(including CUSIP numbers, if any). In case any Note is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be redeemed and shall state
that, on and after the redemption date, upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion thereof will be issued.



     On or prior to the redemption date specified in the notice of redemption given as provided in
this Section 13.13, the Company will deposit with the Trustee or with one or more paying agents
(or, if the Company is acting as its own paying agent, set aside, segregate and hold in trust) an
amount of money in immediately available funds sufficient to redeem on the redemption date all the
Notes (or portions thereof) so called for redemption (other than those theretofore put to the
Company) at the appropriate redemption price, together with accrued and unpaid interest to, but
excluding, the redemption date; provided that if such payment is made on the redemption date it
must be received by the Trustee or paying agent, as the case may be, by 10:00 a.m., New York City
time, on such date. The Company shall be entitled to retain any interest, yield or gain on amounts
deposited with the Trustee or any paying agent pursuant to this Section 13.13 in excess of amounts
required hereunder to pay the redemption price and accrued and unpaid interest to, but excluding,
the redemption date. If any Note called for redemption is put pursuant hereto prior to such
redemption date, any money deposited with the Trustee or any paying agent or so segregated and held
in trust for the redemption of such Note shall be paid to the Company upon its written request, or,
if then held by the Company, shall be discharged from such trust. Whenever any Notes are to be
redeemed, the Company will give the Trustee written notice in the form of an Officers’ Certificate
not fewer than forty-five (45) days (or such shorter period of time as may be acceptable to the
Trustee) prior to the redemption date as to the aggregate principal amount of Notes to be redeemed.



     If less than all of the outstanding Notes are to be redeemed, the Trustee shall select the
Notes or portions thereof of the Global Note or the Notes in certificated form to be redeemed (in
principal amounts of $1,000 or multiples thereof) by lot, on a pro rata basis or by another method
the Trustee deems fair and appropriate. If any Notes selected for partial redemption are put in
part after such selection, the portion of such Note put shall be deemed (so far as may be possible)
to be the portion to be selected for redemption. The Notes (or portions thereof) so selected shall
be deemed duly selected for redemption for all purposes hereof, notwithstanding that any such Note
is put in part before the mailing of the notice of redemption.



     Upon any redemption of less than all of the outstanding Notes, the Company and the Trustee may
(but need not), solely for purposes of determining the pro rata allocation among such Notes as have
not been put to the Company and are outstanding at the time of redemption, treat as outstanding any
Notes put to the Company during the period of fifteen (15) days next preceding the mailing of a
notice of redemption and may (but need not) treat as outstanding any Note authenticated and
delivered during such period in respect of the unput portion of any Note put to the Company in part
during such period.



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     Section 13.14. Payment for Notes Called for Redemption by the Company. If notice of
redemption has been given as provided in Section 13.13, the Notes or portion of Notes with respect
to which such notice has been given shall, unless put to the Company pursuant to the terms hereof,
become due and payable on the date fixed for redemption and at the place or places stated in such
notice at the applicable redemption price, together with interest accrued and unpaid to (but
excluding) the redemption date, and on and after said date (unless the Company shall default in the
payment of such Notes at the redemption price, together with interest accrued to said date).
Interest on the Notes or portion of Notes so called for redemption shall cease to accrue and, after
the close of business on the Business Day immediately preceding the redemption date (unless the
Company shall default in the payment of such Notes at the redemption price, together with interest
accrued to said date), such Notes shall cease to be puttable into Common Stock and, except as
provided in Section 6.05 and Section 11.04, to be entitled to any benefit or security under this
Indenture, and the holders thereof shall have no right in respect of such Notes except the right to
receive the redemption price thereof and accrued and unpaid interest to (but excluding) the
redemption date. On presentation and surrender of such Notes at a place of payment in said notice
specified, the said Notes or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with interest accrued and unpaid thereon to,
but excluding, the redemption date.



     Upon presentation of any Note redeemed in part only, the Company shall execute and the Trustee
shall authenticate and make available for delivery to the holder thereof, at the expense of the
Company, a new Note or Notes, of authorized denominations, in principal amount equal to the
unredeemed portion of the Notes so presented.



     Notwithstanding the foregoing, the Trustee shall not redeem any Notes or mail any notice of
redemption during the continuance of a default in payment of interest on the Notes.



     Section 13.15. Put Arrangement on Call for Redemption. In connection with any redemption of
Notes, the Company may arrange for the purchase and put of any Notes by an agreement with one or
more investment banks or other purchasers to purchase such Notes by paying to the Trustee in trust
for the Noteholders, on or before the date fixed for redemption, an amount not less than the
applicable redemption price, together with interest accrued and unpaid to, but excluding, the date
fixed for redemption, of such Notes. Notwithstanding anything to the contrary contained in this
Article 13, the obligation of the
Company to pay the redemption price of such Notes, together with interest accrued and unpaid
to, but excluding, the date fixed for redemption, shall be deemed to be satisfied and discharged to
the extent such amount is so paid by such purchasers. If such an agreement is entered into, a copy
of which will be filed with the Trustee prior to the date fixed for redemption, any Notes not duly
surrendered for conversion by the holders thereof may, at the option of the Company, be deemed, to
the fullest extent permitted by law, acquired by such purchasers from such holders and
(notwithstanding anything to the contrary contained in Article 13) put by such purchasers, all as
of immediately prior to the close of business on the date fixed for redemption (and the right to
put any such Notes shall be extended through such time), subject to payment of the above amount as
aforesaid. At the



80









 







direction of the Company, the Trustee shall hold and dispose of any such amount
paid to it in the same manner as it would monies deposited with it by the Company for the
redemption of Notes. Without the Trustee’s prior written consent, no arrangement between the
Company and such purchasers for the purchase and put of any Notes shall increase or otherwise
affect any of the powers, duties, responsibilities or obligations of the Trustee as set forth in
this Indenture.



     Section 13.16. Repayment to the Company. The Trustee (or other paying agent appointed by the
Company) shall return to the Company any cash that remains unclaimed as provided in Section 11.04, together with interest, if any, thereon, held by them for the payment of the repurchase
price; provided that to the extent that the aggregate amount of cash deposited by the Company
pursuant to Section 13.13 exceeds the aggregate redemption price or purchase price, as the case may
be, of the Notes or portions thereof that the Company is obligated to redeem or purchase as of the
redemption date or the Designated Event Purchase Date, as the case may be, then, unless otherwise
agreed in writing with the Company, promptly after the Business Day following the redemption date
or the Designated Event Purchase Date, as the case may be, the Trustee shall return any such excess
to the Company together with interest, if any, thereon.



     Section 13.17. Acceleration; Payments to Noteholders. In the event of the acceleration of the
Notes because of an Event of Default, no payment or distribution shall be made to the Trustee or
any holder of Notes in respect of the principal of or interest on the Notes called for redemption
in accordance with Section 13.13 as provided in this Indenture, until such acceleration is
rescinded in accordance with the terms of this Indenture.



     Section 13.18. No Sinking Fund. The Notes are not subject to redemption through the operation
of a sinking fund.



ARTICLE 14

Repurchase of Notes at Option of Holders




     Section 14.01. Repurchase at Option of Holders Upon a Designated Event.



     (a) If a Designated Event occurs at any time, then each Noteholder shall have the right, at
such holder’s option, to require the Company to repurchase all of such holder’s Notes or any
portion thereof that is a multiple of $1,000 principal amount, for cash on the date (the
“Designated Event Purchase Date”) specified by the Company that is not less than twenty (20) days
and not more than thirty-five (35) calendar days after the date of the Designated Event Company
Notice (as defined below) at a repurchase price equal to 100% of the principal amount thereof,
together with accrued and unpaid interest thereon to, but excluding, the Designated Event Purchase
Date (unless the Designated Event Purchase Date is between a regular record date and the
corresponding Interest Payment Date to which it relates, in which case, the Company will pay the
full amount of accrued and unpaid interest payable on such Interest Payment Date to the Noteholders
of record at the close of business on the corresponding regular record date) (the “Designated Event
Purchase Price”). Any Notes purchased by the Company shall be paid in cash.



81









 





     However, notwithstanding the foregoing, Noteholders will not have the right to require the
Company to purchase any Notes upon a Fundamental Change, and the Company will not be required to
deliver the Designated Event Purchase Notice incidental thereto, if at least 90% of the
consideration paid for the Common Stock (excluding cash payments for fractional shares and cash
payments made pursuant to dissenters’ appraisal rights) in such Fundamental Change transaction
consists of capital stock traded on a U.S. national securities exchange or approved for quotation
on a United States system of automated dissemination of quotations of securities prices similar to
the NASDAQ Global Market prior to its designation as a national securities exchange (or will be so
traded or quoted immediately following the merger or consolidation) and, as a result of such
transaction, the Notes become puttable based on the Put Value Rate determined on the basis of
shares of such capital stock.



     Repurchases of Notes under this Section 14.01 shall be made, at the option of the holder
thereof, upon:




     (i) delivery to the Trustee (or other Paying Agent appointed by the Company) by a
holder of a duly completed notice (the “Designated Event Purchase Notice”) in the form set
forth on the reverse of the Note on or before the Business Day prior to the Designated Event
Purchase Date; and




     (ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent
appointed by the Company) at any time after delivery of the Designated Event Purchase Notice
(together with all necessary endorsements) at the Corporate Trust Office of the Trustee (or
other Paying Agent appointed by the Company) in the Borough of Manhattan, such delivery
being a condition to receipt by the holder of the Designated
Event Purchase Price therefor; provided that such Designated Event Purchase Price shall
be so paid pursuant to this Section 14.01 only if the Note so delivered to the Trustee (or
other Paying Agent appointed by the Company) shall conform in all respects to the
description thereof in the related Designated Event Purchase Notice.



     The Designated Event Purchase Notice shall state:




     (A) if certificated, the certificate numbers of Notes to be delivered for
repurchase, or if not certificated, such notice must comply with appropriate
procedures of the Depositary;




     (B) the portion of the principal amount of Notes to be repurchased, which must
be $1,000 or an integral multiple thereof, and




     (C) that the Notes are to be repurchased by the Company pursuant to the
applicable provisions of the Notes and the Indenture.



     Any purchase by the Company contemplated pursuant to the provisions of this Section 14.01
shall be consummated by the delivery of the consideration to be received by the holder



82









 







promptly
following the later of the Designated Event Purchase Date and the time of the book-entry transfer
or delivery of the Note.



     The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company
of the receipt by it of any Designated Event Repurchase Notice or written notice of withdrawal
thereof in accordance with the provisions of Section 14.01(c).



     Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if
the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by the holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and make available for delivery to the holder of such Note without service charge, a
new Note or Notes, containing identical terms and conditions, each in an authorized denomination in
aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal
of the Note so surrendered.



     (b) On or before the tenth day after the Effective Date of any Designated Event, the Company
shall provide to all holders of record of the Notes and the Trustee and Paying Agent a notice (the
“Designated Event Company Notice”) of the occurrence of such Designated Event and of the repurchase
right at the option of the holders arising as a result thereof. Such mailing shall be by first
class mail. Simultaneously with providing such notice, the Company shall issue a press release
containing this information, publish a notice containing this information in a newspaper of general
circulation in The City of New York or publish the information on the Company’s website or through
such other public medium as the Company may use at that time.



     Each Designated Event Company Notice shall specify:




     (i) the events causing the Designated Event and whether such Designated Event also
constituted a Fundamental Change;




     (ii) the date of the Designated Event;




     (iii) the last date on which a holder may exercise the repurchase right;




     (iv) the Designated Event Purchase Date;




     (v) the Designated Event Purchase Price;




     (vi) the name and address of the Paying Agent and the Put Exercise Agent;




     (vii) the applicable Put Value Rate and any adjustments to the applicable Put Value
Rate;




     (viii) that the holder may put the Notes to the Company with respect to which a
Designated Event Purchase Notice has been previously delivered to the Company by a



83









 







holder
only if the holder withdraws the Designated Event Purchase Notice in accordance with Section
14.01(c);




     (ix) that the holder must exercise the repurchase right on or prior to the close of
business on the Business Day prior to the Designated Event Purchase Date (the “Designated
Event Expiration Time”);




     (x) that the holder shall have the right to withdraw any Notes surrendered prior to the
Designated Event Expiration Time, and




     (xi) the procedures that holders must follow to require the Company to repurchase their
Notes.



     No failure of the Company to give the foregoing notices and no defect therein shall limit the
Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the
Notes pursuant to this Section 14.01.



     (c) A Designated Event Purchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the Paying Agent in accordance with the Designated Event Company Notice at
any time prior to the close of business on the Business Day prior to the Designated Event Purchase
Date, specifying:




     (i) if certificated Notes have been issued, the certificate numbers of the withdrawn
Notes, or if not certificated, such notice must comply with appropriate procedures of the
Depositary;




     (ii) the principal amount of the Note with respect to which such notice of withdrawal
is being submitted, and




     (iii) the principal amount, if any, of such Note that remains subject to the original
Designated Event Purchase Notice, which portion must be in principal amounts of $1,000 or an
integral multiple of $1,000;



     (d) On or prior to 11:00 a.m. (local time in The City of New York) on the Business Day
following the Designated Event Purchase Date, the Company will deposit with the Trustee (or other
Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent, set
aside, segregate and hold in trust as provided in Section 3.04) an amount of money sufficient to
repurchase on the Designated Event Purchase Date all of the Notes to be repurchased on such date at
the Designated Event Purchase Price. Subject to receipt of funds and/or Notes by the Trustee (or
other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not
withdrawn) prior to the Designated Event Expiration Time will be made promptly after the later of
(x) the Designated Event Purchase Date with respect to such Note (provided the holder has satisfied
the conditions to the payment of the Designated Event Purchase Price in Section 14.01), and (y) the
time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent
appointed by the Company) by the



84









 







holder thereof in the manner required by Section 14.01 by mailing
checks for the amount payable to the holders of such Notes entitled thereto as they shall appear in
the Note Register, provided, however, that payments to the Depositary shall be made by wire
transfer of immediately available funds to the account of the Depositary or its nominee. The
Trustee shall, promptly after such payment and upon written demand by the Company, return to the
Company any funds in excess of the Designated Event Purchase Price.



     (e) If the Trustee (or other Paying Agent appointed by the Company) holds money sufficient to
repurchase on the Designated Event Purchase Date all the Notes or portions thereof that are to be
purchased as of the Business Day following the Designated Event Purchase Date, then on and after
the Designated Event Purchase Date (i) such Notes will cease to be outstanding and interest will
cease to accrue on such Notes (whether or not book-entry transfer of the Notes has been made or the
Notes have been delivered to the Trustee or Paying Agent); and (ii) all other rights of the holders
of such Notes will terminate (other than the right to receive the Designated Event Purchase Price
upon delivery of the Notes).



ARTICLE 15

Miscellaneous Provisions




     Section 15.01. Provisions Binding on Company’s Successors. All the covenants, stipulations,
promises and agreements of the Company contained in this Indenture shall bind its successors and
assigns whether so expressed or not.



     Section 15.02. Official Acts by Successor Corporation. Any act or proceeding by any provision
of this Indenture authorized or required to be done or performed by any board, committee or officer
of the Company shall and may be done and performed with like
force and effect by the like board, committee or officer of any corporation that shall at the
time be the lawful sole successor of the Company.



     Section 15.03. Addresses for Notices, Etc. Any notice or demand which by any provision of
this Indenture is required or permitted to be given or served by the Trustee or by the Noteholders
on the Company shall be deemed to have been sufficiently given or made, for all purposes if given
or served by being deposited postage prepaid by registered or certified mail in a post office
letter box addressed (until another address is filed by the Company with the Trustee) to Forest
City Enterprises, Inc., 50 Public Square, Terminal Tower, Suite 1100, Cleveland, Ohio 44113-2203,
Attention: General Counsel. Any notice, direction, request or demand hereunder to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or
served by being deposited postage prepaid by registered or certified mail in a post office letter
box addressed to the Corporate Trust Office.



     The Trustee, by notice to the Company, may designate additional or different addresses for
subsequent notices or communications.



85









 





     Any notice or communication mailed to a Noteholder shall be mailed to it by first class mail,
postage prepaid, at his address as it appears on the Note Register and shall be sufficiently given
to it if so mailed within the time prescribed.



     Failure to mail a notice or communication to a Noteholder or any defect in it shall not affect
its sufficiency with respect to other Noteholders. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not the addressee receives it.



     Section 15.04. Governing Law. THIS INDENTURE AND EACH NOTE SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS ENTERED INTO AND TO BE PERFORMED
THEREIN (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF).



     Section 15.05. Evidence of Compliance with Conditions Precedent; Certificates and Opinions of
Counsel to Trustee. Upon any application or demand by the Company to the Trustee to take any
action under any of the provisions of this Indenture after the date hereof, the Company shall
furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been complied with, and an
Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have
been complied with.



     Each certificate or opinion provided for by or on behalf of the Company in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant provided for in
this Indenture shall include (1) a statement that the Person making such certificate or
opinion has read such covenant or condition; (2) a brief statement as to the nature and scope
of the examination or investigation upon which the statement or opinion contained in such
certificate or opinion is based; (3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is necessary to enable it to express an informed opinion as to
whether or not such covenant or condition has been complied with; and (4) a statement as to whether
or not, in the opinion of such Person, such condition or covenant has been complied with.



     Section 15.06. Legal Holidays. In any case where any Interest Payment Date, Designated Event
Purchase Date, Put Exercise Date or Maturity Date will not be a Business Day (or in the case of
Maturity Date, Scheduled Trading Day), then any action to be taken on such date need not be taken
on such date, but may be taken on the next succeeding Business Day (or, in the case of Maturity
Date, the next succeeding Scheduled Trading Day) with the same force and effect as if taken on such
date, and no interest shall accrue for the period from and after such date to the next succeeding
Business Day (or, in the case of Maturity Date, the next succeeding Scheduled Trading Day).



     Section 15.07. No Security Interest Created. Nothing in this Indenture or in the Notes,
expressed or implied, shall be construed to constitute a security interest under the Uniform



86









 







Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any
jurisdiction.



     Section 15.08. Benefits of Indenture. Nothing in this Indenture or in the Notes, expressed or
implied, shall give to any Person, other than the parties hereto, any Paying Agent, any Put
Exercise Agent, any authenticating agent, any Note Registrar and their successors hereunder, and
the Noteholders, any benefit or any legal or equitable right, remedy or claim under this Indenture.



     Section 15.09. Table of Contents, Headings, Etc. The table of contents and the titles and
headings of the articles and sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way modify or restrict any
of the terms or provisions hereof.



     Section 15.10. Authenticating Agent. The Trustee may appoint an authenticating agent which
shall be authorized to act on its behalf and subject to its direction in the authentication and
delivery of Notes in connection with the original issuance thereof and transfers and exchanges of
Notes hereunder, including under Section 2.05, Section 2.06, Section 2.07 and Section 2.08, as
fully to all intents and purposes as though the authenticating agent had been expressly authorized
by this Indenture and those Sections to authenticate and deliver Notes. For all purposes of this
Indenture, the authentication and delivery of Notes by the authenticating agent shall be deemed to
be authentication and delivery of such Notes “by the Trustee” and a certificate of authentication
executed on behalf of the Trustee by an authenticating agent shall be deemed to satisfy any
requirement hereunder or in the Notes for the Trustee’s certificate of authentication.
Such authenticating agent shall at all times be a Person eligible to serve as trustee
hereunder pursuant to Section 6.09.



     Any corporation into which any authenticating agent may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, consolidation or conversion
to which any authenticating agent shall be a party, or any corporation succeeding to the corporate
trust business of any authenticating agent, shall be the successor of the authenticating agent
hereunder, if such successor corporation is otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the parties hereto or the
authenticating agent or such successor corporation.



     Any authenticating agent may at any time resign by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time terminate the agency of any authenticating
agent by giving written notice of termination to such authenticating agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case at any time any
authenticating agent shall cease to be eligible under this Section, the Trustee shall promptly
appoint a successor authenticating agent (which may be the Trustee), shall give written notice of
such appointment to the Company and shall mail notice of such appointment to all Noteholders as the
names and addresses of such holders appear on the Note Register.



87









 





     The Company agrees to pay to the authenticating agent from time to time reasonable
compensation for its services although the Company may terminate the authenticating agent, if it
determines such agent’s fees to be unreasonable.



     The provisions of Section 6.02, Section 6.03, Section 6.04, Section 7.03 and this Section
15.10 shall be applicable to any authenticating agent.



     Section 15.11. Execution in Counterparts. This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall together constitute
but one and the same instrument.



     Section 15.12. Waiver Of Jury Trial. Each of the Company and the Trustee hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in
any legal proceeding arising out of or relating to this Indenture, the Notes or the transaction
contemplated hereby.



     Section 15.13. Force Majeure. In no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of or caused by,
directly or indirectly, forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services; it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.



88









 





     IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the date first written above.



	 	 	 	 	 
	 	FOREST CITY ENTERPRISES, INC.

 	 
	 	By:  	/s/ Robert G. O’Brien	 
	 	 	Name:  	Robert G. O’Brien	 
	 	 	Title:  	Executive Vice President and

Chief Financial Officer	 
	 
	 	THE BANK OF NEW YORK MELLON 

     TRUST COMPANY, N.A. as Trustee

 	 
	 	By:  	/s/ Linda E. Garcia	 
	 	 	Name:  	Linda E. Garcia	 
	 	 	Title:  	Vice President	 
	 




 









 










SCHEDULE A-1




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Stock Price
	Effective Date	 	$12.41	 	$13.00	 	$15.00	 	$17.00	 	$19.00	 	$21.00	 	$23.00	 	$25.00	 	$27.00	 	$29.00
	October 7, 2009
	 	 	11.80	 	 	 	10.63	 	 	 	7.21	 	 	 	4.83	 	 	 	3.16	 	 	 	1.99	 	 	 	1.17	 	 	 	0.60	 	 	 	0.23	 	 	 	0.01	 
	October 15, 2010
	 	 	11.80	 	 	 	10.00	 	 	 	5.37	 	 	 	3.60	 	 	 	2.36	 	 	 	1.48	 	 	 	0.87	 	 	 	0.45	 	 	 	0.17	 	 	 	0.00	 
	October 15, 2011
	 	 	11.80	 	 	 	9.38	 	 	 	3.58	 	 	 	2.40	 	 	 	1.57	 	 	 	0.99	 	 	 	0.58	 	 	 	0.30	 	 	 	0.12	 	 	 	0.00	 
	October 15, 2012
	 	 	11.80	 	 	 	8.76	 	 	 	1.79	 	 	 	1.20	 	 	 	0.79	 	 	 	0.49	 	 	 	0.29	 	 	 	0.15	 	 	 	0.06	 	 	 	0.00	 
	October 15, 2013
	 	 	11.80	 	 	 	8.14	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 	 	 	0.00	 









 









 








EXHIBIT A




[FORM OF FACE OF NOTE]



[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]




 









 








[Include only for Notes that are Restricted Securities]



THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT’’), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER’’ (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT), (2) AGREES THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(d) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THIS NOTE OR THE CLASS A COMMON STOCK ISSUABLE
UPON A PUT WITH RESPECT TO THIS NOTE EXCEPT (A) TO FOREST CITY ENTERPRISES, INC., OR ANY SUBSIDIARY
THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE), OR (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER), (3) PRIOR TO
SUCH TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSES 2(A), 2(B) AND 2(D) ABOVE), IT WILL
FURNISH TO THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS
APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE TRUSTEE MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND (4) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED PRIOR TO EXPIRATION OF THE
HOLDING PERIOD APPLICABLE TO SALES OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(d) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THIS NOTE PURSUANT TO CLAUSE 2(D)
ABOVE OR UPON ANY TRANSFER OF THIS NOTE UNDER RULE 144(d) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION). THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTION.




A-2









 








FOREST CITY ENTERPRISES, INC.

3.625% Puttable Equity-Linked Senior Notes due 2014




No.                    




CUSIP No.                      




     Forest City Enterprises, Inc., a corporation duly organized and validly existing under the
laws of the State of Ohio (herein called the “Company,” which term includes any successor
corporation under the Indenture referred to on the reverse hereof), for value received hereby
promises to pay to CEDE & CO., or registered assigns, the principal sum of Two Hundred Million
Dollars or such other principal amount as shall be set forth on the Schedule I hereto on October
15, 2014.



     This Note shall bear interest at the rate of 3.625% per year from October ___, 2009, or from
the most recent date to which interest had been paid or provided. Interest is payable semi-annually
in arrears on each April 15 and October 15, commencing April 15, 2010, to holders of record at the
close of business on the preceding March 31 and September 30 (whether or not such day is a Business
Day), respectively. Interest payable on each Interest Payment Date shall equal the amount of
interest accrued from and including the immediately preceding Interest Payment Date (or from and
including October ___, 2009 if no interest has been paid hereon) to but excluding such Interest
Payment Date.



     Payment of the principal of and interest accrued on this Note shall be made at the office or
agency of the Company maintained for that purpose in the Borough of Manhattan, The City of New
York, or, at the option of the holder of this Note, at the Corporate Trust Office, in such lawful
money of the United States of America as at the time of payment shall be legal tender for the
payment of public and private debts; provided, however, interest may be paid by check mailed to
such holder’s address as it appears in the Note Register; provided, further, however, that, with
respect to any Noteholder with an aggregate principal amount in excess of $1,000,000, at the
application of such holder in writing to the Note Registrar, interest on such holder’s Notes shall
be paid by wire transfer in immediately available funds to such holder’s account in the United
States supplied by such holder from time to time to the Trustee and Paying Agent (if different from
the Trustee) not later than the applicable record date; provided that any payment to the Depositary
or its nominee shall be paid by wire transfer in immediately available funds in accordance with the
wire transfer instruction supplied by the Depositary or its nominee from time to time to the
Trustee and Paying Agent (if different from Trustee).



     Reference is made to the further provisions of this Note set forth on the reverse hereof,
including, without limitation, provisions giving the holder of this Note the right to receive with
respect to this Note Common Stock of the Company on the terms and subject to the limitations
referred to on the reverse hereof and as more



A-3









 







fully specified in the Indenture. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.



     This Note shall be deemed to be a contract made under the laws of the State of New York, and
for all purposes shall be construed in accordance with the laws of the State of New York applicable
to contracts entered into and to be performed therein (without regard to the conflicts of laws
provisions thereof).



     This Note shall not be valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been manually signed by the Trustee or a duly authorized
authenticating agent under the Indenture.



[Remainder of page intentionally left blank]




A-4









 





     IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.



	 	 	 	 	 
	 	FOREST CITY ENTERPRISES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



A-5









 






	 	 	 	 	 



Dated: October __, 2009




TRUSTEE’S CERTIFICATE OF AUTHENTICATION

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

as Trustee, certifies that this is one of the Notes described in the within-named Indenture.




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Authorized Officer	 	 






A-6









 






[FORM OF REVERSE OF NOTE]




FOREST CITY ENTERPRISES, INC.

3.625% Puttable Equity-Linked Senior Notes due 2014




     This Note is one of a duly authorized issue of Notes of the Company, designated as its 3.625%
Puttable Equity-Linked Senior Notes due 2014 (herein called the “Notes”), issued under and pursuant
to an Indenture dated as of October ___, 2009 (herein called the “Indenture”), between the Company
and The Bank of New York Mellon Trust Company, N.A. (herein called the “Trustee”), to which
Indenture and all indentures supplemental thereto reference is hereby made for a description of the
rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the holders of the Notes. Additional Notes may be issued in an unlimited aggregate
principal amount, subject to certain conditions specified in the Indenture.



     In case an Event of Default, as defined in the Indenture, shall have occurred and be
continuing, the principal of, and accrued and unpaid interest on, all Notes, may be declared, and
upon said declaration shall become, due and payable, in the manner, with the effect and subject to
the conditions provided in the Indenture.



     Subject to the terms and conditions of the Indenture, the Company will make all payments and
deliveries in respect of the Designated Event Purchase Price and the principal amount on the
Maturity Date, as the case may be, to the holder who surrenders a Note to a Paying Agent to collect
such payments in respect of the Note. The Company will pay cash amounts in money of the United
States that at the time of payment is legal tender for payment of public and private debts.



     The Indenture contains provisions permitting the Company and the Trustee in certain
circumstances, without the consent of the holders of the Notes, and in other circumstances, with
the consent of the holders of not less than a majority in aggregate principal amount of the Notes
at the time outstanding, evidenced as in the Indenture provided, to execute supplemental indentures
modifying the terms of the Indenture and the Notes as described therein; provided, however, that no
such supplemental indenture shall make any of the changes set forth in Section 9.02 of the
Indenture, without the consent of each holder of an outstanding Note affected thereby. It is also
provided in the Indenture that, prior to any declaration accelerating the maturity of the Notes,
the holders of a majority in aggregate principal amount of the Notes at the time outstanding may on
behalf of the holders of all of the Notes waive any past Default or Event of Default under the
Indenture and its consequences except as provided in the Indenture. Any such consent or waiver by
the holder of this Note (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such holder and upon all future



A-7









 







holders and owners of this Note and any Notes which may be issued in exchange or substitution
hereof or upon registration of transfer, irrespective of whether or not any notation thereof is
made upon this Note or such other Notes.



     No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of, and accrued and unpaid interest on, this Note, at the place, at the respective times,
at the rate and in the lawful money herein prescribed.



     The Notes are issuable in registered form without coupons in denominations of $1,000 principal
amount and integral multiples thereof. Upon due presentment for registration of transfer of this
Note at the office or agency of the Company in the Borough of Manhattan, The City of New York, a
new Note or Notes of other authorized denominations for an equal aggregate principal amount will be
issued to the transferee in exchange thereof, subject to the limitations provided in the Indenture,
without charge except for any tax, assessments or other governmental charges imposed in connection
therewith.



     The Notes are not subject to redemption prior to maturity through the operation of any sinking
fund.



     Upon the occurrence of a Designated Event, the holder has the right, at such holder’s option,
to require the Company to repurchase all of such holder’s Notes or any portion thereof (in
principal amounts of $1,000 or integral multiples thereof) on the Designated Event Purchase Date at
a price equal to 100% of the principal amount of the Notes such holder elects to require the
Company to repurchase, together with accrued and unpaid interest to but excluding the Designated
Event Purchase Date. The Company or, at the written request of the Company, the Trustee shall mail
to all holders of record of the Notes a notice of the occurrence of a Designated Event and of the
repurchase right arising as a result thereof on or before the tenth day after the occurrence of any
Designated Event.



Subject to the provisions of the Indenture, the holder hereof has the right, at its option, upon
the occurrence of certain conditions specified in the Indenture and prior to the close of business
on the Scheduled Trading Day immediately preceding the Maturity Date, to put to the Company any
Notes or portion thereof which is $1,000 or an integral multiple thereof, in exchange for shares of
Common Stock at the Put Value Rate specified in the Indenture, as adjusted from time to time as
provided in the Indenture, upon surrender of this Note, together with a Put Exercise Notice, a form
of which is attached to the Note, as provided in the Indenture and this Note, to the Company at the
office or agency of the Company maintained for that purpose in the Borough of Manhattan, The City
of New York, or at the option of such holder, the Corporate Trust Office. The initial



A-8









 







Put Value Rate shall be                      shares for each $1,000 principal amount of Notes. No fractional
shares of Common Stock will be issued upon any put, but an adjustment in cash will be paid to the
holder, as provided in the Indenture, in respect of any fraction of a share which would otherwise
be issuable upon the surrender of any Note or Notes after put exercise. No adjustment shall be made
for dividends or any shares issued upon put exercise except as provided in the Indenture. A
Noteholder that certifies that it is a Related Person may not receive shares of Common Stock upon a
put of its Notes to the Company pursuant to Section 13.03 of the Indenture.



     The Company, the Trustee, any authenticating agent, any Paying Agent, any Put Exercise Agent
and any Note Registrar may deem and treat the registered holder hereof as the absolute owner of
this Note (whether or not this Note shall be overdue and notwithstanding any notation of ownership
or other writing hereon), for the purpose of receiving payment hereof, or on account hereof, for
the put exercise hereof and for all other purposes, and neither the Company nor the Trustee nor any
other authenticating agent nor any Paying Agent nor any other Put Exercise Agent nor any Note
Registrar shall be affected by any notice to the contrary. All payments made to or upon the order
of such registered holder shall, to the extent of the sum or sums paid, satisfy and discharge
liability for monies payable on this Note.



     No recourse for the payment of the principal of, or accrued and unpaid interest on, this Note,
or for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in the Indenture or any indenture supplemental
thereto or in any Note, or because of the creation of any debt represented thereby, shall be had
against any incorporator, shareholder, employee, agent, officer, director or Subsidiary, as such,
past, present or future, of the Company or of any successor corporation, either directly or through
the Company or any successor corporation, whether by virtue of any constitution, statute or rule of
law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by
the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and
released.



     Terms used in this Note and defined in the Indenture are used herein as therein defined.



     Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM
(=tenants in common), TENANT (=tenants by the entireties), JT TEN (joint tenants with right of
survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).



A-9









 





[FORM OF PUT EXERCISE NOTICE]




To: FOREST CITY ENTERPRISES, INC. (THE “COMPANY”)




     The undersigned registered owner of this Note hereby exercises the option to put to the
Company this Note, or the portion hereof (which is $1,000 principal amount or an integral multiple
thereof) below designated, in exchange for shares of Common Stock in accordance with the terms of
the Indenture referred to in this Note, and directs that the shares, if any, issuable and
deliverable upon such put exercise, together with any Notes representing any principal amount
hereof not put to the Company, be issued and delivered to the registered holder hereof unless a
different name has been indicated below. If shares, if any, or any portion of this Note not put to
the Company are to be issued in the name of a Person other than the undersigned, the undersigned
will pay all transfer taxes payable with respect thereto. Any amount required to be paid to the
undersigned on account of interest accompanies this Note. The undersigned certifies that it is not
a Related Party, as defined in Section 312.03 of the Listed Company Manual of the New York Stock
Exchange.



	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Signature(s)
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Signature Guarantee
	 
	 	 	 	 	 	 
	Signature(s) must be guaranteed by an
eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and
credit unions) with membership in an approved
signature guarantee medallion program
pursuant to Rule 17Ad-15 under the Securities
Exchange Act of 1934, as amended, if shares
of Common Stock are to be issued, or Notes to
be delivered, other than to and in the name
of the registered holder.	 	 	 	 






A-10









 






	 	 	 	 	 
	Fill in for registration of shares of
Common Stock if to be issued, and Notes
if to be delivered, other than to and in
the name of the registered holder:
	 	 	 	 
	 
	 	 	 	 
	 

(Name)

	 	 	 	 
	 
	 	 	 	 
	 

(Street Address)

	 	 	 	 
	 
	 	 	 	 
	 

(City, State and Zip Code) 


Please print name and address

	 	 	 	 
	 

	 	 	 	Principal amount to be put
	 

	 	 	 	(if less than all): $___,000
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	Social Security or Other Taxpayer

Identification Number:






A-11









 






[FORM OF DESIGNATED EVENT PURCHASE NOTICE]




To: Forest City Enterprises, Inc.




     The undersigned registered owner of this Note hereby acknowledges receipt of a notice from
Forest City Enterprises, Inc. (the “Company”) as to the occurrence of a Designated Event with
respect to the Company and requests and instructs the Company to repay the entire principal amount
of this Note, or the portion thereof (which is $1,000 principal amount or an integral multiple
thereof) below designated, in accordance with the terms of the Indenture referred to in this Note,
to the registered holder hereof.



	 	 	 	 	 	 	 
	Dated:
	 	 	 	 	 	 
	 

	 	 

	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Signature(s)
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Social Security or Other Taxpayer Identification Number
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Principal amount to be repaid (if less than all): $_,000
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	NOTICE: The above signatures of the holder(s) hereof must
correspond with the name as written upon the face of the Note in
every particular without alteration or enlargement or any change
whatever.







A-12









 








Schedule l




FOREST CITY ENTERPRISES, INC.

3.625% Puttable Equity-Linked Senior Notes Due 2014




No.                    




	 	 	 	 	 	 	 
	 	 	 	 	Notation Explaining	 	Authorized
	 	 	 	 	Principal Amount	 	Signature of Trustee
	Date	 	Principal Amount	 	Recorded	 	or Custodian
	October ___, 2009

	 	$